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Cases on 
MILITARY LAW 



COMPILED BY 

THE STAFF CLASS 
1909-10 



"UBsoo 



By ELxdaaagre 

American University 

DEC 3- 1931 



FOREWORD 



The object of this little book is to place before 
the officers of the Army the leading cases on military- 
law in a simple and convenient form. A study of 
the leading cases is an essential part of the study of 
any branch of the law, and especially so of military 
law. Officers generally do not have access to the 
reports of the Supreme Court and other federal 
courts, and are thus handicapped in their study. 
These cases, prepared by practical mihtary men, give 
a simple statement of the facts out of which the case 
arose, the points of law involved, and the decisions 
of the court. If analogous situations arise in the 
future, a careful study of these cases should enable 
officers to reach a proper decision. 

It is intended to have future staff classes supple- 
ment and complete this work. 

The selection of the cases and their revision is 
entirely the work of Captain Charles E. Stodter, 9th 
Cavalry, Instructor, Department of Law. 

H. A. SMITH, 

Captain, 7th Infantry, 
Senior Instructor, Department of Law. 

The Army Staff College, 

Fort Leavenworth, Kansas, 

September 30, 1910. 



TABLE OF CASES 



Page 

1. Houston V. Moore, 5 Wheat. 1 (1820) 1 

2. Martin v. Mott, 12 Wheat. 19 (1827) . 11 

3. Tarble's Case, 13 Wall. 397 (1870) 20 

4. In re Gr.imley, 137 U. S. 147 (1890) . _ 26 

5'. In re Morrisey, 137 U. S. 158 (1890) 31 

6. In re Davison, 21 Fed. 618 (1889) 34 

7. U. S. V. Clark, 31 Fed. 710 (1887) 38 

8. In re Fair, 100 Fed. 149 (1900) . . _ _ ..:... 49 

9. U. S. V. Lipsett, 156 Fed. 65 (1907) 60 

10. Drury v. Lewis, 200 U. S. 1 (1906) 76 

11. Grafton v. U. S. , 206 U. S. 333 (1907) 85 

12. In re Turner, 119 Fed. 231, (1902) 104 

13. O'Reillyd'Camara'i;.Brooke,209U.S. 45(1908) 111 

14. Carrington v. U. S., 208 U. S. 1 (1908) 119 

15. Blake v. U. S., 103 U. S. 227 (1880) 126 

16. Runkle v. U. S., 122 U. S. 543 ( 1886) 137 

17. Badeau v. U. S., 130 U. S. 439 (1888) 150 

18. Swain v. U. S. , 165 U. S. 553 (1897) 156 

19. Carter v. McLaughry, 183 U. S. 365 (1902).. 162 

20. Kirkman v. McLaughry, 152 Fed. 255 (1907) 179 

21. In re Stubbs, 133 Fed. 1012 (1905) . . _ 185 

22. Hamilton v. McLaughry, 136 Fed. 445 (1905) 188 

23. Ex parte Schlaff er, 154 Fed. 921 (1907) 192 

24. Reid v. U. S. , 161 Fed. 469 (1908) 196 

25. Pundt V. Pendleton, 167 Fed. 997 (1909) 199 



HOUSTON V. MOORE 



Supreme Court of the United States, 1820, 5 Wheaton, 1 



Prepared by Captain G.H. Davis, 12th U. S. Infantry 

STATEMENT OF THE CASE 

Houston was a private in a detachment of Penn- 
sylvania militia which was ordered out for United 
States' service by the Governor in pursuance of a 
requisition of the President dated July 4, 1814. 

Having been directed to march with the detach- 
ment to the appointed rendezvous, he neglected and 
failed to do so. For this neglect he was tried by a 
court-martial convened by the Governor of Pennsyl- 
vania under authority of Section 21 of the Act of the 
State of Pennsylvania of March 28, 1814, and was 
sentenced to pay a fine. Moore, a deputy U. S. mar- 
shal, levied on Houston's property. Houston then 
brought suit against Moore in the State Court of Com- 
mon Pleas for trespass. 

The State statute under authority of which 
Houston had been convicted by court-martial provides 
among other things that:— 

"Every non-commissioned officer and private of 
the militia who shall have neglected or refused to 
serve when called into actual service, in pursuance 
of any order or requisition of the President of the 
United States, shall be liable to the penalties defined 
in the Act of the Congress of the United States 
passed on the 28th day of February 1795;" and then 
proceeds to enumerate them and to each clause adds: 
' *or shall be liable to any penalty which may have been 
prescribed since the date of the passing of the said 
act, or which may hereafter be prescribed by any 
law of the United States." 



— 2— 

The statute then further provides that 

"within one month, after the expiration of the 
time for which any detachment of militia shall 
have been called into the service of the United 
States, the proper brigade inspector shall summon a 
general or regimental court-martial, as the case may- 
be, for the trial of such person or persons belonging 
to the detachment called out, who shall have re- 
fused or neglected to march therewith, or to fur- 
nish a sufficient substitute; or who, having marched 
therewith, shall have returned, without leave from 
his commanding officer, of which delinquents the 
proper brigade inspector shall furnish to the said 
court-martial an accurate list. And as soon as the 
said court-martial shall have decided in each of the 
cases which shall be submitted for their considera- 
tion, the president thereof shall furnish to the mar- 
shal of the United States, or to his deputy, and also 
to the comptroller of the treasury of the United 
States, a list of the delinquents fined, in order that 
further proceedings directed to be had thereon by 
the laws of the United States may be completed." 

At the trial of Moore for trespass Houston 
prayed the court to instruct the jury:— 

"That the first, second, and third paragraphs of 
the 21st section of the above statute of Pennsylvania, 
so far as they related to the militia called into the 
service of the United States, under the laws of Con- 
gress, and who failed to obey the orders of the Pres- 
ident of the United States, are contrary to the Con- 
stitution of the United States and the laws of Con- 
gress made in pursuance thereof, and are, therefore, 
null and void." 

The court, however, gave instructions to the 
contrary and a judgment having been rendered for 
the defendant the case was carried to the Supreme 
Court of Pennsylvania where the judgment of the 
lower court was affirmed. It was then taken to the 
Supreme Court of the United States under the 25th 
Section of the Judiciary Act. 

The constitutional provision and laws of the 



United States to which it was claimed the Pennsyl- 
vania law was repugnant are:— 

1. The Constitution provides that Congress shall 
have power to provide for calling forth the militia in 
three specified cases: for organizing, arming, and 
disciplining them; and for governing such parts of 
them as may be employed in the service of the United 
States; reserving to the states, respectively, the ap- 
pointment of the officers, and the authority of train- 
ing the militia according to the discipline prescribed 
by Congress. It is further provided, that the Presi- 
dent of the United States shall be commander of the 
militia, when called into the actual service of the 
United States. 

2. The act of the 2d of May, 1792, which is re- 
enacted almost verbatim by that of the 28th of 
February, 1795, authorizes the President of the 
United States, in case of invasion, or of imminent 
danger of it, or when it may be necessary for execut- 
ing the laws of the United States, or to suppress 
insurrections, to call forth such number of the mil- 
itia of the states most convenient to the scene of 
action, as he may judge necessary and to issue his 
orders for that purpose to such officer of the militia 
as he may think proper. It prescribes the amount of 
pay and allowances of the militia so called forth, and 
employed in the service of the United States, and 
subjects them to the Rules and Articles of War appli- 
cable to the regular troops. It then proceeds to pre- 
scribe the punishment to be inflicted upon delinquents, 
and the tribunal which is to try them, by declaring, 
that every officer or private who shall fail to obey 
the orders of the President in any of the cases before 
recited should be liable to pay a certain fine, to be 
determined and adjusted by a court-martial, and to 
be imprisoned, by a like sentence, on failure of pay- 
ment. The courts-martial for the trial of militia, 
are to be composed of militia officers only, and the 
fines to be certified by the presiding officer of the 
court, to the marshal of the district, and to be levied 
by him, and, also, to the supervisor, to whom the 
fines are to be paid over. 

The act of the 18th of April, 1814, provides that 



-4— 



courts-martial, to be composed of militia officers 
only, for the trial of militia, drafted, detached, and 
called forth for the service of the United States, 
whether acting in conjunction with the regular 
forces or otherwise, shall, whenever necessary, be 
appointed, held and conducted in the manner pre- 
scribed by the Rules and Articles of War, for ap- 
pointing, holding and conducting courts-martial _ for 
the trial of delinquents in the army of the United 
States." 



QUESTIONS TO BE DECIDED 

The defendant contended, first, that militiamen, 
when called into the service of the United States by 
the President's orders, communicated either to the 
executive or to any inferior militia officer of a state, 
are not to be considered as being in the service of 
the United States until they are mustered at the 
place of rendezvous. This being so, second, that the 
state retains the right concurrent with the United 
States to punish this delinquency. 

It was admitted that so long as the militia are 
acting under the jurisdiction of the state to which 
they belong, the power of legislation over them is 
concurrent in the general and state government. It 
was conceded that after a detachment has been 
called forth and has entered into the service of the 
United States, the authority of the general govern- 
ment over such detachment is exclusive. 

The plaintiff, besides denying the two conten- 
tions of the defendant above cited, claimed that if 
state jurisdiction be admitted it would either oust the 
jurisdiction of the United States' court-martial or 
might subject the accused to be twice tried for the 
same offense; that if the governor of the state had 
authority to try these men he might, in case of con- 
viction, have pardoned them. 



— 5— 

OPINION OF THE COURT 

The court was divided in its opinion on these 
points. Mr. J. Washington, delivering the opinion 
of the court, said in conclusion: 

"Two judges are of the opinion that the law in 
question is unconstitutional and that the judgment 
below ought to be reversed. The other judges are 
of the opinion that the judgment ought to be 
affirmed; but they do not concur in all respects in the 
reasons which influence my opinion." 

Mr. J. Johnson said: 

"In this case, it will be observed that there is 
no point whatever decided, except that the fine was 
constitutionally imposed upon the plaintiff in error. 
The courses of reasoning by which the judges have 
reached this conclusion are various, coinciding in but 
one thing, namely, that there is no error in the 
judgment of the state court of Pennsylvania." 

Mr. J. Story said: 

" I feel myself bound to declare that the clauses 
of the militia act of Pennsylvania now in question are 
repugnant to the Constitution and laws of Congress 
on the same subject, and are utterly void, and that 
therefore the judgment of the state court ought to 
be reversed. In this opinion I have the concurrence 
of one of my brethren." 

An attempt will now be made to show on what 
grounds the court were agreed and on what points 
there was disagreement. 

The court were all agreed that the mere calling 
out of the mihtia did not put it in the actual service 
of the United States. Before it could be considered 
in actual service, some other act, such as mustering 
in, was necessary. On this point the opinion of J. 
Washington reads: 

" From this brief summary of the laws, it would 
seem that actual service was considered by Congress 



— 6— 

as the criterion of national militia and that service 
did not commence until the arrival of the militia 
at the place of rendezvous * * * and indeed it 
would seem to border somewhat upon an absurdity 
to say that a militiaman was in the service of the 
tlnited States at any time, who, so far from entering 
into it for a single moment, had refused to do so, and 
who never did any act to connect him with such 
service." 

Johnson J. says: 

"I am perfectly satisfied that the individual in 
this case was not amenable to any law of the United 
States; both that there was no law of the United 
States that reached his case and that there was 
nothing done or intended to be done by the govern- 
ment of the United States to bring him within their 
laws before he reached the place of rendezvous." 

Story J. says: 

"In my judgment, there are the strongest rea- 
sons to believe that by employment 'in the service,' 
or, as it is usually expressed, ' in the actual service ' 
of the United States, something more must be meant 
than a mere calling forth of the militia — that it 
includes some acts of organization, mustering, or 
marching done or recognized in obedience to the call 
in the public service." 

It being admitted then that a militiaman refus- 
ing to obey the order of the President to enter the 
service of the United States, is not to be considered 
in the service of the United States or removed from 
the military jurisdiction of the State to which he 
belongs, the next question to decide is, is it compe- 
tent for the State to which he belongs to provide for 
trying and punishing him for his disobedience by a 
court-martial deriving its authority from the State. 
On this question the court was divided. 

Justices Washington and Story held that the 
offense was solely one against the United States. 
Justice Johnson that while it undoubtedly might be 



— 7— 

an offense against the United States still it was also 
an offense against the State and in support of his 
contention said:— 

"Every citizen of a State owes a double allegi- 
ance; he enjoys the protection and participates in the 
government of both the State and the United States. 
It is obvious, that in those cases in which the United 
States may exercise the right of exclusive legislation, 
it will rest with Congress to determine whether the 
general government shall exercise the right of pun- 
ishing exclusively or leave the States at liberty to 
exercise their own discretion. But where the United 
States cannot assume or where they have not assumed 
this exclusive right of power I cannot imagine a 
reason why the States may not also, if they feel 
themselves injured by the same offense, assert their 
right of inflicting punishment also." 

The sole difference in the opinions thus far seems 
to be this:— Justices Washington and Story hold the 
offense was purely one against the United States and 
that that government only could prescribe punish- 
ment for it. Justice Johnson held that the United 
States might have made it an exclusive offense 
against itself but having failed to do so, the State 
could make it an offense against itself also, and could 
assume jurisdiction thereof. This reason was suffi- 
cient for affirming the judgment of the lower court. 

From this point the opinions of Washington J. 
and Story J. differ. The former holds that the 
Pennsylvania Law creates no offense and prescribes 
no punishment. It merely recites the law of the 
United States concerning this matter in order to 
confer authority on its own tribunal to try the mat- 
ter which otherwise would be without jurisdiction 
and he contends that such jurisdiction is contem- 
plated and intended by the acts of Congress for the 
following reasons: 

1. Exclusive jurisdiction is not given to courts- 



martial deriving their authority from the national 
government, by express words, although it is ad- 
mitted such might have been done. 

2. In every case in which State tribunals are 
not expressly excluded by acts of the national legis- 
lature they may, of course, take cognizance of the 
causes to which those acts might give birth. (Let- 
ters of Publius, or Federalist No. 82.) 

3. The Judiciary Act confers upon the circuit 
and district courts of the United States exclusive 
jurisdiction of offenses against its penal laws but 
military offenses are not included in such acts. 

4. While State courts may exercise a concurrent 
jurisdiction with the United States courts, if the 
former previously had such jurisdiction, still Congress 
can not confer jurisdiction upon them. 

5. The Act of 1812 does not render jurisdiction 
conferred upon the federal court-martial exclusive. 
It provides that courts-martial for the trial of militia 
drafted and called forth shall when necessary, be 
appointed, held, and conducted in the manner pre- 
scribed by the rules of war. The opinion of Wash- 
ington J. on the last point reads:— 

"But the law used the expression 'when neces- 
sary'. How is this to be understood? It may mean, 
I acknowledge, whenever there are delinquents to 
try; but surely if it imports no more than this it was 
very unnecessarily used, since it would have been 
sufficient to say that courts-martial for the trial of 
militia called into the service, should be formed and 
conducted in the manner prescribed by the law. The 
Act of 1795 had declared who were liable to be tried, 
but had not said with precision before what court the 
trial should be had. This act describes the court; 
and the two laws being construed together, would 
seem to mean that every such delinquent as is de- 
scribed in the Act of 1795 should pay a fine, to be 
determined and adjudged by a court martial, to be 
composed of militia officers, to be appointed and con- 



— 9— 

ducted in the manner prescribed by the Articles of 
War. These words, 'when necessary,' have no mean- 
ing, if they are confined to the existence of cases for 
trial before the court. But if they be construed (as 
I think they ought to be) to apply to trials rendered 
necessary by the omission of the States to provide 
for State courts-martial, to exercise a jurisdiction in 
in the case, or of such courts to take cognizance of 
them when so authorized, they have an important 
and useful meaning. If the State court-martial pro- 
ceeds to take cognizance of the cases, it may not ap- 
pear necessary to the proper officer in the service of 
the United States to summon a court-martial to try 
the same cases; if they do not or for want of author- 
ity cannot try them, then it may be necessary to con- 
vene a court-martial under the Articles of War, to 
take and to exercise the jurisdiction. * * * Upon 
the whole I am of opinion that the State court-mar- 
tial had a concurrent jurisdiction with the tribunal 
pointed out by acts of Congress to try a militiaman 
who had disobeyed the call of the President and to 
enforce the laws of Congress against such delinquent; 
and that this authority will remain to be so exercised 
until it shall have pleased Congress to vest it exclus- 
ively elsewhere or until the State of Pennsylvania 
shall withdraw from their courts-martial the author- 
ity to take such jurisdiction." 

On the other hand Mr. J. Story contended that 
the jurisdiction of the Federal court-martial was 
necessarily exclusive for the reasons that the law 
mentioning a court-martial was a United States law 
and must naturally refer only to a United States 
court-martial. Furthermore if it were intended to 
confer concurrent jurisdiction on a State court-mar- 
tial the law would have expressly stated it. Without 
expressed delegation a State court cannot assume 
jurisdiction as an attribute of original sovereignty. 
Its original sovereignty did not extend to offenses 
created by acts of Congress. Such offenses sprang 
from the Union. Moreover, if a State court-martial 
were intended there would be no necessity for pro- 



—10— 

viding that courts-martial for the trial of militia 
should be composed of militia officers only because 
States do not have control of regular officers. It 
must be conceded then that federal courts-martial 
have exclusive jurisdiction. 
Mr. J. Story concludes: 

"If, then, we strip the case before the court of 
all unnecessary appendages, it presents this point, 
that Congress had declared that its own courts-mar- 
tial shall have exclusive jurisdiction of the offense, 
and the State of Pennsylvania claims a right to in- 
t!erfere with that exclusive jurisdiction, and to decide 
in its own courts upon the merits of every case of 
alleged delinquency. Can a more direct collision 
with the authority of the United States be imagined? 
It is an exercise of concurrent authority where the 
laws of Congress have constitutionally denied it. If 
an act of Congress be the supreme law of the land, 
it cannot be made more binding by an affirmative re- 
enactment of the same act by a State legislature. 
The latter must be merely inoperative and void." 

List of authorities cited by the court: — 
Statutes at large. 
Statutes, Pennsylvania. 
Federalist No. 82. 

Chirac v. Chirac, 2 Wheaton 259-269. 
Martin v. Hunter, 1 Wheaton 304-327. 
U. S. V. Lathrop, 17 Johns Rep. 4. 
Ex parte Belson, 5 Holls Amer. Law Journal, Pa. 
White V. Commonwealth, 4 Binn 418. 
Livingston v. Van Ingen, 9 Johns 507, 567, 



MARTIN V. MOTT 



Supreme Court of the United States, 1827, 12 Wheaton 19 



Prepared by Captain J. McA. Palmer, 15th Infantry 



STATEMENT OF THE CASE 

Jacob E. Mott was a member of the militia of the 
State of New York. Sometime during the war of 
1812, he was ordered to a designated place of rendez- 
vous in order to be mustered into the service of the 
United States. The order was issued by the Com- 
mander-in-Chief of the Militia of the State of New 
York pursuant to a requisition issued by the Presi- 
dent of the United States under the provisions of the 
Act of February 28, 1795. Mott refused and failed 
to report at the place of rendezvous. 

More than three years after the expiration of the 
war, Mott was brought before a general court-martial 
and tried under Section 5 of the Act of 1795, which 

provides "that every officer, non-commissioned offi- 
cer or private of the militia, who shall fail to obey 
the orders of the President of the United States," 
etc., "shall forfeit a sum not exceeding one year's 
pay and not less than one month's pay, to be deter- 
mined and adjudged by a court-martial". 

The act further provides that the delinquents 
"shall be liable to be imprisoned by a like sentence, 
on failure of payment of the fines adjudged against 
them, for one calendar month for every five dollars 
of such fine". 

The court-martial was convened by a general 

commanding an army and was composed of six militia 

officers, the Act of 1795 having provided "that courts- 
11 



—12- 

martial for the trial of militia shall be composed of 
militia officers only. ' ' 

The sentence of the court as certified by its 
president was as follows: 

And thereupon the said general court-martial 
imposed the sum of $96 as a fine on the said Jacob 
E. Mott for having thus failed, neglected, and refused 
to rendezvous and enter in the service of the United 
States of America, when thereto required as afore- 
said, and that the said Jacob E. Mott was sentenced 
by the said general court-martial, on failure of the 
payment of the said fine imposed on him, to twelve 
months imprisonment." 

The sentence of the court as prescribed by law 
was turned over to the United States marshal for 
execution, and was actually executed by one Martin, 
a deputy marshal who seized certain goods and chat- 
tels belonging to Mott. 

The lawsuit originated in an action of replevin 
to recover these goods and chattels. Martin put in 
an avowry asserting a justification of the taking to 
satisfy a fine and forfeiture imposed upon Mott by a 
court-martial acting in pursuance to the act of Feb- 
ruary 28, 1795. Mott filed a demurrer assigning 
nineteen distinct »and special causes of demurrer. 
Upon a joinder in demurrer the Supreme Court of 
the State gave judgment against Martin, and that 
judgment was affirmed by the court for the trial of 
impeachments and the correction of errors of the 
State of New York, the highest court of that State. 

The case was then taken on writ of error to the 
Supreme Court of the United States, where the 
alleged causes of demurrer were reviewed. 

POINTS OF LAW TO BE DECIDED 

The most essential questions raised by the case 
are as follows: 

1. Who is to determine when the exigency 



—13— 

justifying the calling out of the militia actually 
exists? 

2. If the judgment of the President is con- 
clusive as to the existence of the exigency, was it a 
defect in the avowry that it omitted to aver that the 
exigency did exist? 

3. Was it necessary to set forth the orders of 
the President in the avowry? It appears that the 
avowry did not set forth such orders, but only 
averred that the Governor of New York called out 
the militia upon the requisition of the President. 

4. As Mott had never been in the service of the 
United States but had failed to enter such service 
was the court-martial that tried him a lawfully con- 
stituted court-martial having jurisdiction of the 
offense at the time of passing sentence? 

5. Was it a fatal defect that the court-martial 
was not composed of the right number of officers re- 
quired by the Articles of War, and that it did not, 
in other particulars, follow the procedure pre- 
scribed by the Articles of War. 

6. Was the sentence legal in view of the fact 
that the proceedings took place and sentence was 
given three years and more after the war was con- 
cluded and in a time of profound peace? 

DISCUSSION OF THE CASE AND OPINION OF THE COURT 

The questions of law as stated above were dis- 
posed of by the court in the following manner: 

1. Who is to determine when the exigency jus- 
tifying the calling out of the militia actually exists? 

In answer to this question the opinion of the 
court is as follows: 

"For the more clear and exact consideration of 
the subject, it may be necessary to refer to the Con- 
stitution of the United States, and some of the pro- 
visions of the Act of 1795. The Constitution declares 
that Congress shall have power 'to provide for call- 



-14- 

ing forth the militia, and to execute the laws of the 
Union, suppress insurrections, repel invasion ;'^ and 
also *to provide for organizing, arming and disciplin- 
ing the militia, and for governing such part of them 
as may be employed in the service of the United 
States.' In pursuance of this authority, the Act of 
1795 has provided 'that whenever the United States 
shall be invaded, or be in imminent danger of inva- 
sion from any foreign nation or Indian tribe, it shall 
be lawful for the President of the United States to 
call forth such number of the militia of the state or 
states most convenient to the place of danger, or 
'scene of action, as he may judge necessary to repel 
such invasion, and to issue his orders for that pur- 
pose to such officer or officers of the militia as he may 
think proper'. And like provisions are made for the 
other cases stated in the Constitution. * * * 

* * * Is the President the sole and exclusive 
judge whether the exigency has arisen, or is it to be 
considered as an open question, upon which every 
officer to whom the orders of the President are ad- 
dressed, may decide for himself, and equally then to 
be contested by every militia-man who shall refuse to 
obey the orders of the President? We are all of the 
opinion, that the authority to decide whether the ex- 
igency has arisen belongs exclusively to the Presi- 
dent, and that his decision is conclusive upon all 
other persons. * * * 

Whenever a statute gives a discretionary power 
to any person, to be exercised by him upon his own 
opinion of certain facts, it is a rule of construction, 
that the statute constitutes him the sole and exclusive 
judge of the existence of those facts. And in the 
present case, we are all of the opinion that such is , 
the true construction of the Act of 1795." 

2. If the judgment of the President is conclu- 
sive as to the existence of the exigency, was it a 
defect in the avowry that it omitted to aver that the 
exigency did exist? 

"But it is now contended, as it was contended in 
that case, (Vanderbeyden v. Young, 11 Johns Rep. 
150), that notwithstanding the judgment of the Pres- 
ident is conclusive as to the existence of the exigency, 



-15— 

and may be given in evidence as conclusive proof 
thereof, yet that the avowry is fatally defective, be- 
cause it omits to aver that the fact did exist. The 
argument is, that the power confided to the Presi- 
dent is a limited power, and can be exercised only in 
the cases pointed out in the statute, and therefore it 
is necessary to aver the facts which bring the exer- 
cise within the purview of the statute. In short, the 
same principles are sought to be applied to the dele- 
gation and exercise of this power intrusted to the 
Executive of the nation for great political purposes, 
as might be applied to the humblest officer in the 
Government, acting upon the most narrow and spec- 
ial authority. It is the opinion of the court that this 
objection cannot be maintained. When the President 
exercises an authority confided to him by law, the 
presumption is, that it is exercised in pursuance of 
law. * * * It is not necessary to aver, that the 
act which he might rightfully do, was so done. If 
the fact of the existence of the exigency were 
averred, it would be traversable, and of course might 
be passed upon by a jury: and thus the legality of 
the orders of the President would depend, not on his 
own judgment of the facts, but upon the findings of 
those facts upon the proofs submitted to a jury." 

3. Was it necessary to set forth the orders of 
the President in the avowry? It appears that the 
avowry did not set forth such orders, but only averred 
that the Governor of New York called out the militia 
upon the requisition of the President. 

Says the court with reference to this point: 
"The objection, as far as it proceeds upon a 
supposed difference between a requisition and an 
order, is untenable; for a requisition calling forth 
the militia is, in legal intendment, an order, and 
must be so interpreted in the avowry. The majority 
of the court understood and acted upon this sense, 
which is one of the acknowledged-senses of the word, 
in Houston v. Moore, 5 W. 1." 

4. As Mott had never been in the service of the 
United States but had failed to enter such service, 



—16— 

was the court-martial that tried him a lawfully con- 
stituted court-martial having jurisdiction of the 
offense at the time of passing sentence? 

The opinion disposes of the question as follows: 

"The case of Houston v. Moore, 5 W. 1, affords a 
conclusive answer to this suggestion. It was decided 
in that case, that although a militia-man, who refuses 
to obey the orders of the President calling him into 
the public service, was not, in the sense of the Act 
of 1795, 'employed in the service of the United 
States,' so as to be subject to the Rules and Articles 
of War; yet that he was liable to be tried for the 
'offense under the 5th Section of the same act, by a 
court-martial called under the authority of the United 
States." 

In other words, while Mott was not subject to 
the jurisdiction of the courts-martial provided under 
the authority of the Statutes known as the Rules and 
Articles of War he was subject to the courts-martial 
provided by the Act of 1795 for the punishment of 
the specific offense of refusing to enter the service in 
obedience to the orders of the President. 

5. Was it a fatal defect that the court-martial 
was not composed of the right number of officers re- 
quired by the Articles of War, and that it did not, in 
other particulars, follow the procedure prescribed by 
the Articles of War? 

The opinion indicates that the composition of the 
court-martial and its procedure did as a matter of 
fact, conform in all essential particulars to the re- 
quirements of the Articles of War, but it is pointed 
out that this is not pertinent to the case. For as 
indicated in the opinion on the preceding question, 
Mott was not tried under the Articles of War, as 
they could not apply to a militia-man who had failed 
to enter the service of the United States. His court- 
martial was authorized directly by the Act of 1795, 
and its composition and procedure must be deter- 
mined solely by the terms of that act. 



-17- 

The Act of 1795 prescribed "that courts-martiai 
for the trial of militia shall be composed of militia 
officers only", and this was the only limitation con- 
tained in the act. The opinion continues as follows: 

"It is not, therefore, admitted * * * that 
such a court-martial as is contemplated for the trial 
of delinquents under the 5th section of the act of 
1795, is to be composed of the same number of offi- 
cers, organized in the same manne'r as these rules 
and articles contemplate for persons in actual ser- 
vice. If any resort is to be had to them, it can only 
be to guide the discretion of the officer ordering the 
court, as matter of usage, and not as matter of posi- 
tive institution. If, then, there be no mode pointed 
out for the formation of the court-martial in these 
cases, it may be asked, in what manner is such court 
to be appointed? The answer is, according to the 
general usage of the military service, or what may 
not unfitly be called the customary military law. It 
is by the same law that courts-martial, when duly or- 
ganized, are bound to execute their duties, and regu- 
late their modes of proceeding, in the absence of 
positive enactments. Upon any other principle, 
courts-martial v/ould be left without any adequate 
means to exercise the authority confided to them; for 
there could scarcely be a positive code to provide for 
the infinite variety of incidents appHcable to them." 

6. Was the sentence legal, in view of the fact 
that the proceedings took place and sentence was 
given three years and more after the war was con- 
cluded and in a time of profound peace? 

"The opinion of the court is that a court-martial, 
regularly called under the act of 1795, does not ex- 
pire with the end of war then existing, nor is its 
jurisdiction to try these offenses in any shape de- 
pendent upon the fact of war or peace. The act of 
1795 is not confined in its operation to cases of re- 
fusal to obey the orders of the President in times of 
public war. On the contrary, that act authorizes the 
President to call forth the militia to suppress in- 
surrection, and to enforce the laws of the United 



-la- 
ctates in times of peace. And courts-martial are, 
under the 5th section of the act, entitled to take 
cognizance of, and to punish delinquencies in such 
cases, as well as in cases where the object is to repel 
invasion in times of war. It would be a strained 
construction of the act to limit the authority of the 
court to the mere time of the existence of the par- 
ticular exigency, when it might be thereby unable to 
take cognizance of and decide upon a single offense. 
It is sufficient for us to say that there is no such 
limitation in the act itself." 

DECISION OF THE COURT 

"Upon the whole, it is the opinion of the court 
that the judgment of the court for the trial of im- 
peachment and errors ought to be reversed, and that 
the cause be remanded to the same court with di- 
rections to cause a judgment to be entered upon the 
pleadings in favor of the avowant." 

CASES CITED IN MARTIN V. MOTT 

1. Houston V. Moore, 5 W. 1. In this case it 
was decided that a state statute which authorized a 
state court-martial to try a militiaman for failure to 
obey the President's order calling forth the militia, 
and to impose the penalties prescribed in the act of 
Congress of February 28, 1795, is a constitutional 
statute. 

2. Vanderheyden v. Young, 11 John's Rep. 
150 (N. Y.). 

CITATIONS OF MARTIN V. MOTT IN SUBSEQUENT CASES 

BEFORE THE SUPREME COURT OF THE 

UNITED STATES 

Luther v. Borden, 7 How. 44, 61, 77. 

Murray v. Hoboken Land & Imp. Co. , 18 How. 

280. 
Ex parte Vallandigham, 1 Wall. 254. 
Wilkes V. Dinsman, 7 How. 130. 



—19— 

U. S. V. Speed, 8 Wall 83. 
Cook V. Moffat, 5 How. 315. 
Smith V. Whitney, 116 U. S. 179. 
Mullanv. U. S., 140 U. S. 245. 
Nashimura Ekiu v. U. S., 142 U. S. 660. 
Lena Moon Sing v. U. S., 158 U. S. 544. 
Swain V. U. S., 165 U. S. 559. 



UNITED STATES v. TARBLE 



Supreme Court of the United States, 1870, 13 Wallace 397 



Prepared by Captain C. S. Lincoln, 2d Infantry 

STATEMENT OF THE CASE 



I Tarble enlisted in the United States Army July 
27, 1869, under the name of Frank Brown, for a 
period of five years. 

He took the oath required by law and Army 
Regulations, in which he declared he was 21 years 
old, and was mustered into the service of the United 
States; later he deserted the service, was apprehended 
and held in confinement by Lieutenant Stone, United 
States Army, recruiting officer in the city of Madi- 
son, Wisconsin, under charge of desertion, awaiting 
trial by proper military authorities. 

This case was a proceeding on habeas corpus for 
his discharge from said confinement on the ground 
that he was a minor, under the age of 18 at the time 
of his enlistment, and that he enlisted without the 
consent of his father. 

The writ of habeas corpus was issued on August 
10, 1869, upon petition of Tarble's father, by a court 
commissioner of Dane County, Wisconsin, an officer 
duly authorized to issue said writ. 

The writ was directed to Lieutenant Stone and 
commanded him "to have Tarble, together with the 
cause of his imprisonment and detention, before the 
commissioner, at the latter's office, in the city of 
Madison, immediately after the receipt of the writ." 

Lieutenant Stone produced Tarble before the 
commissioner and made a return in writing to the 

20 



—21— 

writ, "protesting that the commissioner had no jui-is- 
diction in the premises, and, stating, as the authority 
and cause for the detention of the prisoner, that he, 
the officer, was a first lieutenant in the Army of the 
United States, and by due authority was detailed as 
recruiting officer at the city of Madison, in the state 
of Wisconsin, and as such officer had the custody and 
command of all soldiers recruited for the Army at 
that city". This return also included a history of 
the case as given above. 

The petitioner filed a reply to the above return 
denying: that Tarble had been duly enlisted or mus- 
tered as a soldier into the army; or that he had de- 
clared under oath that he was 21 years old. The 
reply stated that the oath of allegiance was the 
only oath taken at enlistment and ' 'that the prisoner 
was not, and never had been, a deserter from the 
military service of the United States". 

The case was heard by the commissioner on 
August 12, who, after the case had been presented, 
"held that the prisoner was illegally imprisoned and 
detained by Lieutenant Stone, and commanded that 
officer forthwith to discharge him from custody". 

The case was carried to the Supreme Court of 
Wisconsin and in April, 1870, this court affirmed the 
judgment of the commissioner. 

This judgment was then taken before the Su- 
preme Court of the United States on writ of error, 
prosecuted by the Government. 

THE POINTS OF LAW TO BE DECIDED 

1. Has a state court commissioner jurisdiction, 
upon habeas corpus, "to inquire into the validity of 
the enlistment of soldiers into the military service of 
the United States, and to discharge them from such 
service when, in his judgment, their enlistment has 
not been made in conformity with the laws of the 



—22— 

United States?" That is, has he jurisdiction to 
proceed when a person is held under authority of the 
National Government? 

2. Has a state court the right to determine, up- 
on habeas corpus, whether the Supreme Court of the 
United States had jurisdiction in any special case? 

Mr. Justice Field, after a statement of the case, 
delivered the opinion of the court. 

In the cases of Ableman v. Booth,* cases arising 
under the fugitive slave law, the Wisconsin Supreme 
Court held the above mentioned act unconstitutional 
and void, and therefore that the Federal Court had 
no jurisdiction. 

In the case of Booth* the Supreme Court of Wis- 
consin held that the action of one of its justices in 
discharging a prisoner held in custody by a United 
States marshal, under warrant of commitment for 
an offense against the laws of the United States 
issued by a United States commissioner was legal. 

It later discharged the same prisoner when he 
was in confinement under a sentence of the District 
Court of the United States. 

These cases were later heard before the United 
States Supreme Court. After statement of the case, 
the Chief Justice gave the following opinion in ans- 
wer to the assumption of judicial power by the 
judges of the Supreme Court of Wisconsin. 

"If they possess the jurisdiction they claim, they 
must derive it either from the United States or the 
State. It certainly has not been conferred upon them 
by the United States; and it is equally clear it was 
not in the power of the State to confer it, even if it 
had attempted to do so; for no State can authorize 
one of its judges or courts to exercise judicial power, 
by habeas corpus or otherwise, within the jurisdic- 
tion of another and independent government, and 

*Ableman v. Booth and United States v. Booth, 21 Howard 
506. 



—23— 

although the State of Wisconsin is sovereign within 
the territorial limits to a certain extent, yet that 
sovereignty is limited and restricted by the Constitu- 
tion of the United States * * * and the State of 
Wisconsin has no more power to authorize these pro- 
ceedings of its judges and courts, than it would have 
had if the prisoner had been confined in Michigan, 
or in any other state of the Union, for an offense 
against the laws of the State in which he was im- 
prisoned." 

The solution of the point of law in this case is 
found in the distinct and independent character of 
the government of the United States from that of 
the several states. Within each state there are two 
governments, restricted in certain directions but in- 
dependent and supreme within their respective 
spheres; neither can interfere with actions of the 
other. They stand in the same relation as if their au- 
thority was exercised over distinct territory except 
that in case of conflict the authority of the Federal 
government is supreme. 

"The Constitution and the laws passed in pursu- 
ance of it, are declared by the constitution itself to 
be the supreme law of the land, and the judges of 
every state are bound thereby." 

In view of the conditions just stated no state can 
interfere with the judicial process of the Federal 
Government and the latter can only interfere in case 
of conflict of authority. 

The following powers are assigned to the Federal 
Government: "to raise and support armies", and "to 
provide for the government and regulation of the land 
and naval forces" and its power over them is supreme. 
It can determine the manner of raising this force, 
duties to which it shall be assigned and fix regula- 
tions for its government and no interference by 
state officials can be permitted without loss or de- 
struction of efficiency. If a soldier could be taken 



—24— 

from the army by the issuance of habeas corpus by 
state authorities, and the validity of his enlistment in- 
quired into, the national government would be greatly 
hampered in its undertakings and officials opposed to 
the government could use this power to the detri- 
ment of the public service. 

State officials have the power to issue the writ of 
habeas corpus unless it appear that the person con- 
cerned is confined under authority of the national 
government and if this be the case the writ should 
be refused. In case this writ is addressed to an offi- 
cer holding a person under authority of the national 
government he should make a return showing the au- 
thority under which he holds the prisoner and the 
process or orders under which he acts should be 
submitted with the return. 

Mr. Justice Field stated the following in the 
opinion: 

"After the return is made, and the state judge 
or court judicially apprised that the party is in cus- 
tody under the authority of the United States, they 
can proceed no further. They then know that the 
prisoner is within the dominion and jurisdiction of 
another government, and that neither the writ of 
habeas corpus nor any other process issued under 
state authority can pass over the line of division be- 
tween the two sovereignties. He is then within the 
dominion and exclusive jurisdiction of the United 
States. If he has committed an oifense against their 
laws, their tribunals alone can punish him. If he is 
wrongfully imprisoned, their judicial tribunals can 
release him and afford him redress. 

It follows, from the views we have expressed, 
that the court commissioner of Dane County was 
without jurisdiction to issue the writ of habeas cor- 
pus for the discharge of the prisoner in this case, it 
appearing, upon the application presented to him for 
the writ, that the prisoner was held by an officer of 
the United States, under claim and color of the auth- 
ority of the United States, as an enlisted soldier 



—25— 

mustered into the military service of the National^ 
Government; and the same information was im- 
parted to the commissioner by the return of the 
officer." 

The Chief Justice dissented from this opinion stat- 
ing: that he could not concur in the opinion; that he 
had no doubt of the right of a state court to inquire 
into the jurisdiction of a Federal Court upon habeas 
corpus and to discharge the prisoner if satisfied he 
was held by a court without competent jurisdiction; 
and that a writ of habeas corpus may issue from a 
state court to inquire into the validity of the deten- 
tion of a prisoner by an officer of the United States. 



CASES CITED 
Ableman v. Booth 



United States V. Booth ^ ^1 Howard 506. 

In re Spangler, 11 Michigan 299. 

State V. Zulich, 5 Ducher 409. 

In re Hopson, 40 Barbour 43. 

In re Jordan, 11 American Law Register 749. 

In the matter of Severy, 4 Clifford. 

In the matter of Keeler, Hempstead 306. 



In Re QRIMLEY 



Supreme Court of the United States, 1890 
137 U. S. 147 



Prepared hy Captain Manus McCloskey, Ifth U. S. 
Field Artillery 



' STATEMENT OF THE CASE 

John Grimley, an able bodied man over 40 years 
of age, was enlisted February 18, 1888. In his oath 
of allegiance he swore that he was 28 years old. He 
signed the clothing rolls, selected his uniform in the 
clothing room, left it there and then went out to see 
friends. He did not return. On the 16th of May, 
1888, he was arrested as a deserter and later tried 
and convicted. While serving his sentence of six 
months at Fort Warren, he sued out a writ of habeas 
corpus in the U. S. District Court of Massachusetts. 
That court discharged him from custody. The 
United States appealed to the Circuit Court for the 
district and the Circuit Court affirmed the decree of 
the District Court. ^From this decision the United 
States appealed to the Supreme Court. Counsel for 
Grimley maintained, first, that Grimley was 40 years 
old, that the statutory age for original enlistments 
was 35 years, that the recruiting officer could not 
change the statutory requirement and that the en- 
listment was void. 

Second, that the act of enlistment was not com- 
plete because the Articles of War were not read to 
Grimley, as required by the 2d Article, which makes 
such reading a condition precedent to the valid ad- 
ministration of the oath. 

26 



—27— 
OPINION OF THE COURT 

Mr. Justice Brewer delivered the opinion of the 
court. This opinion is frequently cited to show that 
enlistment is a status rather than a contract relation, 
and, for that reason, is quoted at some length. 

The court said: 

"It cannot be doubted that the civil courts may 
in any case inquire into the jurisdiction of a court- 
martial, and, if it appears that the party condemned 
was not amenable to its jurisdiction, may discharge 
him from the sentence. And, on the other hand, it 
is equally clear that by habeas corpus the civil courts 
exercise no supervisory or correcting power over the 
proceedings of a court-martial, and that no mere 
errors in their proceedings are open to consideration. 
The single inquiry, the test, is jurisdiction. That 
being established, the habeas corpus must be denied 
and the petitioner remanded. That wanting, it must 
be sustained and the petitioner discharged. If 
Grimley was an enlisted soldier he was amenable to 
the jurisdiction of the court-martial; and the prin- 
ciple question, the one ruled against the government, 
is whether Grimley's enlistment was void by reason 
of the fact that he was over 35 years of age. This 
case involves a matter of contractual relation be- 
tween the parties; and the law of contracts, as ap- 
plicable thereto, is worthy of notice. The govern- 
ment, as contracting party, offers contract and 
service. Grimley accepts such contract declaring 
that he possesses all the qualifications prescribed in 
the government's offer. The contract is duly signed. 
Grimley has made an untrue statement inregard to 
his qualifications. The government makes no ob- 
jections because of the untruth. The qualification is 
one for the benefit of the government, one of the 
contracting parties. Who can take advantage of 
Grimley 's lack of qualification? Obviously only the 
party for whose benefit it was inserted. Such is the 
ordinary law of contracts. * * * * Qj^ ^j^g 
other hand, suppose for any reason it could be con- 
tended that the proviso as to age was for the benefit 
of the party enlisting, is Grimley in any better posi- 



—28— 

tion? The matter of age is merely incidental, and 
not of substance of the contract; and can a party by 
false representations as to such incidental matter 
obtain a contract, and thereafter disown and repudi- 
ate its obligation on the simple ground that the fact 
in reference to this incidental matter was contrary 
to his representations? May he utter a falsehood to 
acquire a contract, and plead the truth to avoid it, 
when the matter in respect to which the falsehood is 
stated is for his benefit? It must be noted here that 
in the present contract is involved no matter of 
duress, imposition, ignorance or intoxication. Grim- 
ley was sober, and of his own volition went to the 
recruiting office and enlisted. There was no com- 
pulsion, no solicitation, no misrepresentation. A 
man of mature years, he entered freely into the con- 
tract. 

"But in this transaction something more is in- 
volved than the making of a contract, whose breach 
exposes to an action for damages. Enlistment is a 
contract; but it is one of those contracts which 
changes the status, and, where that is changed, no 
breach of the contract destroys the new status or re- 
lieves from the obligations which its existence im- 
poses. Marriage is a contract, but it is one which 
creates a status. Its contract obligations are mutual 
faithfulness; but a breach of those obligations does 
not destroy the status or change the relation of the 
parties to each other. The parties remain husband 
and wife, no matter what their conduct to each 
other— no matter how great their disregard of mari- 
tal obligations. It is true that courts have power, 
under the statutes of most states, to terminate those 
contract obligations, and put an end to the marital 
relations. But this is never done at the instance of 
the wrongdoer. The iniured party, and the injured 
party alone, can obtain relief and a change of status 
by judicial action. So, also, a foreigner by naturali- 
zation enters into new obligations. More than that, 
he thereby changes his status; he ceases to be an 
alien and becomes a citizen, and when that change is 
once accomplished it is not destroyed by the mere 
misconduct of one of the parties, and the guilty 
party cannot plead his own wrong as working a 



-29- ., 

termination and destruction thereof. Especially is 
he debarred from pleading the existence of facts 
personal to himself, existing before the change of 
status, the entrance into new relations, which would 
have excused him from entering into those relations 
and making the change, or if disclosed to the other 
party, would have led it to decline admission into the 
relation, or consent to the change. 

"By enlistment the citizen becomes a soldier. 
His relations to the state and the public are changed. 
He acquires a new status, with correlative rights and 
duties; and although he may violate his contract 
obligations, his status as a soldier is unchanged. 
He cannot of his own volition throw off the garments 
he has once put on, nor can he, the state not object- 
ing, renounce his relations and destroy his status on 
the plea that, if he had disclosed truthfully the facts, 
the other party, the state, would not have entered 
into the new relations with him, or permitted him to 
change his status. * * * * rpj^^ government has 
the right to the military service of all its able-bodied 
citizens; and may, when emergency arises,^ justly 
exact that service from all. And if, for its own 
convenience, and with a view to the selection of the 
best material, it has fixed the age at S5, it is a 
matter which in any given case it may waive; and it 
does not lie in the mouth of any one above that age, 
on that account alone, to demand release from an 
obligation voluntarily assumed, and discharge from 
a service voluntarily entered into. The government, 
and the government alone, is the party to the trans- 
action that can raise objections on that ground. _ We 
conclude, therefore, that the age of the petitioner 
was no ground for his discharge." 

With reference to the enlistment being complete 
without the reading of the Articles of War, the court 
said: 

" ' These rules and articles shall be read to every 
enlisted man at the time of, or within six days after 
his enlistment, and he shall thereupon take an oath 
or affirmation ', etc. Obviously the oath is the final 
act in the matter of enlistment. Article 47, respect- 
ing desertion, reads: 'Any officer or soldier who, 



—30— 

having received pay, or having been duly enlisted in 
the service of the United States, deserts the same ', 
etc. By this either receipt of pay or enlistment de- 
termines the status; and after enlistment the party 
becomes amenable to military jurisdiction, although 
no actual service may have been rendered and no pay 
received. 

It is insisted that the Articles of War were not 
read to him; but that is not prerequisite. 'Within 
six days after * is the statute. The reading of the 
128 articles, many of which do not concern the duty 
pf a soldier, is not essential to his enlistment. 
* * * * w/'e conclude, therefore, upon the 
whole case, that the age of the petitioner was no bar 
to his enlistment of which he can take advantage; 
that the taking of the oath of allegiance is the pivotal 
fact which changes the status from that of the 
civilian to that of the soldier; that the enlistment 
was a deliberate act on the part of the petitioner; 
and that the circumstances surrounding it were not 
such as would enable him, of his own volition, to 
ignore it, or justify a court in setting it aside. 

"The judgment of the Circuit Court will be re- 
versed and the case remanded with instructions to 
reverse the decree of the District Court and take 
such further proceedings as shall be in conformity 
with the opinion of this court." 



In Re MORRISSEY 



Supreme Court of the United States, 1890 
137 U. S. 157 



Prepared by Captain Manus McCloskey, Uh U. S, 
Field Artillery 



STATEMENT OF THE CASE 

The circumstances of the case are cited in the 
opinion which follows: 

OPINION OF THE COURT 

Mr. Justice Brewer in delivering the opinion of 
the court said: 

"This case, appealed from the Circuit Court for 
the Eastern District of Missouri, presents like that of 
Grimley, Petitioner, just decided, a question arising 
on habeas corpus as to the rights of the petitioner, an 
enlisted soldier, to be discharged from military cus- 
tody. An effort was made to bring this case here by 
writ of error; but that was abandoned, and an appeal 
rightfully substituted. (In re Neagle, 135 U. S. 1, 42.) 
The facts differ from those inGrimley's case, in this: 
the petitioner was seventeen years of age, and had a 
mother living who did not consent to his enlistment. 
Upon his enlistment he drew from the United States 
his uniform and equipments, and continued in actual 
service from the 23d day of August to the 13th day of 
September, 1883, when he deserted. He remained in 
concealment until February, 1889, at which time he 
had become of age, and then appeared at a recruit- 
ing office and demanded his discharge from the army 
on the grounds that he was a minor when enlisted. 
In his oath of allegiance he swore that he was twen- 
ty-one years and five months old. It will be seen 
that the petitioner was within the ages prescribed by 
section 1116 of the Revised Statutes, to writ, sixteen 

31 



-32— 

and thirty-five years. Section 1117 provides that *no 
person under the age of twenty-one years shall be 
enlisted or mustered into the military service of the 
United States without the written consent of his 
parents or guardian: Provided, That such minor has 
such parents or guardian entitled to his custody and 
control.' But this provision is for the benefit of 
the parent or guardian. It means simply that the 
government will not disturb the control of the par- 
ent or guardian over his or her child without consent. 
It gives the right of parent or guardian to invoke the 
aid of the court and secure the restoration of a minor 
to his or her control; but it gives no privilege to the 
minor. 

"The age at which an infant shall be competent 
to do any acts or perform any duties, military or 
civil, depends wholly upon the legislature. United 
States V. Bainbridge, 1 Mason 71; Wassum v. Feeney, 
121 Mass. 93, 95. Congress has declared that minors 
over the age of sixteen are capable for military ser- 
vice, and undertaking and performing its duties. 

"An enlistment is not a contract only, but effects 
a change of status. Grimley's Case, ante, 147. It 
is not, therefore, like an ordinary contract, voidable 
by the infant. At common law an enlistment was 
not voidable either by the infant or by his parents or 
guardian. The King v. The Inhabitants of Rother- 
ford Greys, 2 Dow. & Ryl. 628, 634: S. C, 1 B. & C. 
345, 350; The King v. The Inhabitants of Lytchet 
Matravers, 1 Man. & Ryl. 25, 31; S. C, 7 B. & C. 
226, 231; Commonwealth v. Gamble, 11 S. & R. 93; 
United States v. Blakeney, 3 Grattun 405, 411-413. 

"In this case the parent never insisted upon her 
right of custody and control; and the fact that he had 
a mother living at the time is, therefore, immaterial. 
The contract of enlistment was good so far as the pe- 
titioner is concerned. He was not only de facto, but 
de jure, a soldier— amenable to military jurisdiction. 
His mother not interfering, he was bound to remain 
in the service. His desertion and concealment for 
five years did not relieve him from his obligations as 
a soldier, or his liability to military control. The order 
of the Circuit Court remanding him to the custody 
of the appellee was correct and must be affirmed." 



LIST OF CASES CITED 

U. S. SUPREME COURT 

In re Neagle, 135 U. S. 1. 
In re Grimley, 137 U. S. 147. 

FEDERAL REPORTER 

U. S. V. Bainbridge, 1 Mason 71. 

STATE 

Wassum v. Feeney, 121 Mass. 93, 95. 
Commonwealth v. Gamble, 11 S. & R. 93. 
U. S. V. Blakeney, 3 Grattan 405, 411-413. 

BRITISH 

The King v. The Inhabitants of Rotherf ord Greys, 
2 Dow. & Ryl. 628, 634; S. C., 1 B. & C. 345, 
350. 

The King v. The Inhabitants of Lytchet Mat- 
ravers, 1 Man. & Ryl. 25, 31; S. C., 7 B. & C. 
226, 231. 



In Re DAVISON 



Circuit Court, S. D. New York, 1884. 21 Federal Reporter 

618 



Prepared by Captain Manus McCloskey, Uh U. S. 
, Field Artillery 



STATEMENT OF THE CASE 

Davison, a civilian, aged 19, enlisted in the U. S. 
Army in July, 1870, for 5 years, w^ithout his mother's 
consent, she being dependent upon him for support. 
He deserted while on furlough in February, 1872, 
was apprehended and brought to Fort Columbus in 
October, 1880, and while in confinement at the post 
awaiting trial by G.C.M. was ordered discharged 
from custody by the District Judge of New York on 
habeas corpus. 

An appeal to review the decision was brought to 
the Circuit Court, S. D. New York. 

It appeared that Davison was in New York dur- 
ing the entire time from his desertion to apprehen- 
sion. His discharge was claimed on two grounds, 
1. That his contract of enlistment was void and 
therefore he could not be held as a deserter. 2. That 
if a deserter he was not amenable to trial because 
more than two years had elapsed since the commis- 
sion of the alleged offense. 

It will be noted here that the 103d Article of 
War in force in 1884 at time of the decision was 
amended in 1890 to its present condition, i.e. the two 
year limit in case of desertion in time of peace begins 
at end of term for which the deserter enlisted. 

34 



—35-^ 
OPINION OP THE COURT 
In considering the first question, viz., that Dav- 
ison was a minor enlisted without his parent's con- 
sent and his enlistment was therefore void, the court 
say: 

' 'The provisions of the laws of Congress in force 
at the time of the relator's enlistment, so far as they 
affect the point, are reproduced in Sections 1116, 
1117 and 1118, Revised Statutes. 

Section 1116 is as follows: 

' 'Recruits enlisting in the army must be effec- 
tive and able-bodied men, and between the ages of 
16 and 35 years at the time of their enlistment." 

Section 1117 enacts: 

"No person under the age of 21 years shall be 
enlisted or mustered into the military service of the > 
United States without the written consent of his par- 
ents or guardians, provided that such minor has 
such parents or guardians entitled to his custody and 
control." 

Section 1118 enacts: 

"No minor under the age of 16 years, no insane 
or intoxicated person, no deserter from the military 
service of the United States, and no person who has 
been convicted of a felony, shall be enlisted or mus- 
tered into the military service. 

"The reasonable conclusion warranted by these 
sections would seem to be that the contract of enlist- 
ment of a minor under 16 years of age is void; but 
that if he is over that age it is valid, in the absence 
of fraud or duress as to him, but during his minority 
is invalid at the election of his parents or guardian." 

Continuing the court say: 

"The case of Menzes v. Camac, 1 Serg. & R. 87, 
arising under the act of March 16, 1802, is directly 
in point. The statute in that case was similar in its 
provisions to section 1117, and the court held the 



—36— 

minor bound by his contract; that the parent alone 
could assert its invalidity; and therefore refused to 
discharge the minor upon habeas corpus at his own 
application." 

In considering the second question, namely, that 
if Davison was a deserter he was not amenable to 
trial, because more than two years had elapsed since 
the commission of the alleged offense, the court say: 

"It must be held that it is for the court-martial 
and not this court to decide whether the statutory 
limitation can be invoked effectively by the accused 
to protect him from punishment. If the petitioner 
was legally in custody awaiting trial by court-martial 
for a military offense, this proceeding must fail. He 
was legally in custody if the offense is one of which 
that tribunal has jurisdiction. It is not the office of 
a writ of habeas corpus to anticipate the action of 
the appropriate tribunal by determining, in advance 
of its investigations and judgment, whether the ac- 
cused is innocent or guilty of the offense for which 
he is held for trial, any more than it is to perform 
the functions of a writ of error after a trial has been 
had. Courts-martial are lawful tribunals existing by 
the same authority that this court is created by, have 
as plenary jurisdiction over offenses by the law mili- 
tary as this court has over the controversies commit- 
ted to its cognizance, and within their special and 
more limited sphere are entitled to as untrammeled 
an exercise of their powers. ******* 

"The question of the jurisdiction of a general 
court-martial may always be inquired into upon the 
application of any party aggrieved by its proceedings, 
and so may that of every judicial tribunal; but the 
range and scope of the inquiry is controlled by the 
same rules and limitations in both cases. There 
must be jurisdiction to hear and determine, and to 
render the particular judgment or sentence imposed. 
If this exists, however erroneous the proceedings 
may be they cannot be reviewed collaterally upon 
habeas corpus. *********** 
Although Article 102 declares that no person shall be 
'liable to be tried and punished' by a general court- 



—37 — 

martial for an offense which appears not to have been 
committed within two years, this language does not 
limit or qualify the jurisdiction of mihtary tribunals, 
but prescribes a rule of procedure for the benefit of 
the accused, to be considered and enforced upon the 
trial, in the exercise of a jurisdiction already conferred. 
The limitation is a matter of defense, which is tobe 
entertained and determined like any other question 
involving an adjudication upon the merits of the 
case." 

The court then cites In Re White, 17 Fed. Rep. 723: 

' * It was there held, on a proceeding in habeas 
corpus, that the limitation prescribed by Article 103 
is a matter of defense, and that the court-martial 
was the tribunal having jurisdiction to try the charge 
of desertion, and to determine whether the limita- 
tion attached or not; and because of these conclusions 
the court refused to discharge the relator, and re- 
manded him to be dealt with by the military author- 
ities. " 

The court reversed the decision of the District 
Court and remanded Davison to the military author- 
ities, discharging the writ of habeas corpus. 

LIST OF CASES CITED 



FEDERAL REPORTER 

In re White, 17 Fed. 723. 

STATES. 

Menzes v. Comas, 1 Serg. & R 87. 



UNITED STATES v. CLARK 



Circuit Court, E. D. Michigan, 1887, 31 Federal 
Reporter 710 



Prepared by Captain N. F. McClure, 5th U. S. 
, Cavalry 



STATEMENT OF THE CASE 

On complaint before the district judge, as 
committing magistrate, for murder upon the Fort 
Wayne military reservation. 

"Arthur Stone, the deceased, was a private sol- 
dier of Company I, Twenty-third Regiment, United 
States Infantry, and, at the time of the homicide, 
was under conviction of a court-martial for ' conduct 
prejudicial to good order and military discipline', 
and had been sentenced, *to be dishonorably dis- 
charged the service of the United States, forfeiting 
all pay and allowances due or to become due, and to 
be confined at hard labor, at such military prison as 
the reviewing authority may direct, for two years, ' 
The prisoner was the sergeant of the guard having 
him in custody at the time. On the eleventh day of 
July, at 'retreat', all the prisoners in the guard- 
house, six in number, had been taken out of the 
guard-house for roll-call and inspection, and were 
standing in a line, with their backs to the guard- 
house, in charge of a squad of armed soldiers. As 
Lieut. Wieton, officer of the day, and the present 
prisoner, the sergeant of the guard, were entering 
the guard-house, to inspect it, and just as the pris- 
oner was crossing the threshold of the outer door, 
deceased, who was standing at the end of the line of 
prisoners, broke from the ranks, ran around the 
corner of a fence in line with the guard-house, and 
towards the public highway in front of the military 

38 



—39— 

reserve, from which it was separated by a board 
fence about six feet in height. As he left the ranks, 
an outcry was raised, and the quartermaster ser- 
geant, who happened to see the escape, and a private 
by the name of Duff, started in pursuit, calUng upon 
him to halt; the sergeant adding, 'There is a load 
after you.' Clark, hearing the outcry, turned and 
seized a cartridge from his box, hastily loaded his 
musket, and ran around the guard-house in the direc- 
tion which Stone had taken. At this time Stone was 
about 30 yards ahead of his nearest pursuer, Duff, 
who did not seem to be gaining upon him, and stood 
little if any chance of overtaking him before he could 
gain the street. Just as he was crossing a military 
road within the reserve, and about to leap a rail fence 
parallel with this road, and about 35 yards from the 
outer fence, and about 80 yards from the guard- 
house, Clark fired, and hit Stone in the back just 
above the hips, inflicting a wound from which he 
died in the course of the evening. No ill feeling ex- 
isted between the men; in fact they had always been 
upon very friendly terms, and it was at least doubt- 
ful whether Clark knew it was Stone when he fired." 

POINTS OF LAW INVOLVED 

1. Have the Circuit Courts of the United States 
jurisdiction of homicides committed by one soldier 
upon another within a military reservation of the 
United States? 

2. If homicide is committed by a soldier or of- 
ficer, while a member of a guard, without malice and 
in the performance of what he believes to be his du- 
ty, is such killing excusable, unless it was done man- 
ifestly outside of his authority or was such that a 
man of reasonable sense and understanding would 
know that it was contrary to law? 

3 Is a member of a military guard justified in 
shooting a military convict if there be no other pos- 
sible means of preventing his escape? 

4. In military offenses, is there any distinction 



—40— 

between felonies and misdemeanors such as is found 
at the common law? 

5. Does the finding of the Court of Inquiry, ac- 
quitting an officer or enlisted man of all blame for a 
homicide against a military prisoner killed while at- 
tempting to escape, legally bar prosecution in a civil 
court? If not, what weight should such an acquittal 
have before a civil court, if any? 

OPINION OF THE COURT 
^ {Somewhat condensed) 

The court at first had some doubt as to whether 
this homicide committed on a military reservation of 
the United States by a soldier against a former sol- 
dier who at the time was a military convict, could be 
taken cognizance of by a civil court. 

But, upon further consideration, the court did 
not consider that it could refuse to hear the com- 
plaint for the reason that to do so would be to ab- 
dicate that supremacy of the civil power which is a 
fundamental principle of the Anglo-Saxon polity. 

While there is no status expressly conferring such 
jurisdiction, there is a clear recognition of it in the 
59th Article of War. This article of war makes no 
exception of crimes committed by one soldier upon 
another, nor in cases where there is concurrent jur- 
isdiction in the military courts. The subject of the 
civil responsibility of the army was very carefully 
considered by the Attorney General of the United 
States in Steiner's Case (6 Op. Atty. Gen. 413) and 
the conclusion reached that an act criminal by both 
mihtary and general law is subject to be tried either 
by a military or a civil court and that a conviction or 
acquittal by the civil authority of the offense against 
the general law does not discharge from responsi- 
bility for the mihtary offense involved in the same 
facts. The converse of this proposition is equally 
true. 



—41- 

There is no doubt but that the deceased was 
killed by the prisoner under the performance of a 
supposed obligation to prevent his escape by any 
means in his power. There is no evidence that the 
accused fired before the necessity for his doing so 
became apparent. Stone was called upon several 
times to halt. 

A court of inquiry, called to investigate the 
matter, was of the opinion that the shooting was 
justifiable and that if Clark had not performed his 
duties so efficiently, the prisoner would have escaped. 
The accused's reputation was good and he was friend- 
ly with the deceased. It is doubtful if Clark recog- 
nized him at the time he shot him. 

Clark says that he aimed low to disable and not 
kill, but that a depression in the ground, which Stone 
was passing over, caused the latter to be hit in the 
back. For the purposes of this examination the 
court is bound, however, to presume that Clark in- 
tended to kill the deceased since ever^* one is presum- 
ed to intend the natural and probable consequences 
of his act. The question then is, vras the accused 
justifiable in law in killing the deceased? 

The general rule is that an officer having custody 
of a person charged with felony maj^ take his life if 
it becomes absolutely necessary to prevent his escape. 
It is doubtful if this would be strictly applicable at 
the present day. For example, it would be hardly 
justifiable for an officer to kill a man charged with 
petit larceny though that crime is a felony at common 
law. In militan.- law that distinction between fel- 
onies and misdemeanors, found in common law, does 
not exist. 

There is no such crime at common law as that of 
which the deceased was convicted, ^iz: "conduct to 
the prejudice of good order and military discipline." 
It would be extremely unviise for the civil courts to 



—42 

lay down general principles of the law which would 
tend to impair the efficiency of the military arm. 
An army is a necessity— perhaps I ought to say an 
unfortunate necessity — under every system of govern- 
ment. To insure efficiency an army must be, to a 
certain extent, a despotism. Each officer from the 
general down to the corporal is invested with arbi- 
tary power over those beneath him and the soldier 
who enlists in the army waives, in some particulars, 
his rights as a civilian, surrenders his personal liber- 
ty during the term of his enlistment, and consents to 
come and go at the will of his superior officers. 

The articles of war, to observe which he takes 
an oath on enlistment, are a code of Draconic sever- 
ity and authorize harsh punishments for some offen-. 
ses which seem to be of a trivial nature to civilians. 

The 62d Article of War provides for the punish- 
ment of all crimes not capital and all disorders and 
neglects to the prejudice of good order and military 
discipline by a court-martial at the discretion of said 
court. 

The deceased was found guilty under the latter 
article of war and was sentenced to two years' im- 
prisonment in a military prison. In trying to escape, 
he was again guilty of "conduct to the prejudice of 
good order and military discipline." 

Had the accused suffered him to escape he him- 
self would have been amenable to punishment under 
the 62d Article of War, unless he used his utmost 
endeavors to prevent such escape. Did he exceed 
his authority in using his musket? 

While human life is sacred, and the man who 
takes it is held strictly accountable for his act, a re- 
putable citizen, who certainly does not lose his char- 
acter as such by enlisting in the army, ought not to 
be branded as a murderer upon a mere technicality 



—43— 

unless such technicality be so clear as to admit of no 
reasonable doubt. 

In this connection, it is urged by the defense 
that the finding by the court of inquiry acquitting 
the accused of all blame is a complete bar to this 
prosecution. The court does not so regard it. If 
the civil courts have jurisdiction of murder, notwith- 
standing the concurrent jurisdiction by courts-mar- 
tial of military offenses, it follows. logically that the 
proceedings in one cannot, be pleaded as a bar to pro- 
ceedings in the other. At the same time I think 
that great weight should be given, in a case of this 
kind, to the finding as an expression of the opinion 
of the military court of the magnitude of Stone's 
offense and the necessity of using a musket to pre- 
vent Stone's escape. 

In the case Wilkes vs. Dinsman, Mr. Justice 
Woodbury says: 

"The officer, being intrusted with a discretion 
for public purposes, is not to be punished for the ex- 
ercise of it, unless it is first proved against him, 
either that he exercised the power confided to him in 
cases without his jurisdiction, or in a manner not con- 
fided to him, as, with malice, cruelty or willful oppres- 
sion, or, in the words of Lord Mansfield, that he exer- 
cised it as if 'the heart is wrong.' In short, it is not 
enough to show that he committed an error in judg- 
ment but it must have been a malicious and wilful 
error." 

As the evidence shows that there is no reason to 
believe that Clark was not doing what he believed to 
be his duty, and the act was not so clearly illegal that a 
a reasonable man might not suppose it to be legal, —in 
fact this court is of the opinion that it was legal — and 
as there was an entire absence of malice, it is believed 
that he ought to be discharged. 

But even if the case was decided upon common 
law principles the result would not be different. By 



—44— 

the analogies of law, Stone must be considered as 
having been convicted of a felony. This accused 
was therefore justified in using means to prevent his 
escape. The court therefore assumes the responsi- 
bility of directing his discharge. 

It will thus be seen that the court decided the 
1st, 2d and 3d questions in the affirmative and the 
4th in the negative. In discussing the 5th question, 
the Court arrives at the conclusion that the finding of 
a, Court of Inquiry, acquitting an officer or soldier of 
all blame for a homicide against a military prisoner 
trying to escape, is not a legal bar to prosecution in 
a civil court, but that such a finding is of great weight 
before a civil court. In other words, it is expert 
opinion as to the facts in the case. The decision of 
the Court on all these points is excellent law and has 
been of great assistance to the army in administering 
discipline in the last two decades. 

True, the court does not seem to have a very 
clear idea of the legal status and legal force of the 
deliberations of a court of inquiry. But if we stop 
to investigate this, the reasons for it are not hard to 
find. Twenty-five years ago, not only was the army 
small, but the greater part of it was scattered over 
the frontier at remote military posts. Judges of civil 
courts, in those days, could hardly be expected to 
keep at their fingers ends, a system of jurisprudence 
which they were seldom, if ever, to be called upon to 
apply. The cases involving points of military law, 
appearing on the dockets of the civil courts, were 
few indeed. That important decisions were few and 
far between is evidenced also by the satisfaction with 
which we of the military seized upon an opinion fav- 
oring the enforcement of order and discipline, and 
cherished and nurtured it until some learned court 
or judge, like the one in this case, extended us 
another helping hand. 



-45— 

Let us now take up the questions decided in the 
case of United States vs. Clark: 

1st. Have the Circuit Courts of the United 
States jurisdiction of homicides committed by one 
soldier upon another on a military reservation? 

The court say, yes. This decision has been 
further strengthened by the decision in the Grafton 
case, in which it is stated in substance that, under 
the 62d Article of War, general courts-martial may 
take cognizance of all crimes not capital committed 
against the law by an officer or enlisted man of the 
army within the limits of the territory or district in 
which he is serving; that this jurisdiction is not ex- 
clusive but concurrent with that of the civil courts 
of the United States; and that if a court-martial first 
acquires jurisdiction, its judgment cannot be ignored 
by the civil courts of the United States for a mere 
error, or for any reasons other than those affecting 
the jurisdiction of the court arriving at said judg- 
ment. 

The same act, constituting an offense against 
the United States, cannot, after the acquittal or con- 
viction of the accused, in a court of competent juris- 
diction, be made grounds for another trial of the 
accused for the same offense in the same or in 
another court, civil or military, of the same govern- 
ment. 

Although when committed in a state, the same 
act might constitute two distinct offenses, one 
against the United States and one against the state, 
for both of which the accused might be brought to 
trial, still this rule does not apply where all the 
courts, civil and military, derive their authority 
from the United States. The reason for this is that 
the government of a state does not derive its power 
from the United States, whereas the government of 



—46- 

the Philippine Islands owes its existence wholly to 
the United States. 

From this we see that, in all cases of offenses 
against laws of the United States, committed either 
without or within a state on a military reservation 
by an officer or soldier of the army, the Circuit 
Courts of the United States have concurrent juris- 
diction with the military courts. 

This whole subject will be found treated in detail 
in the Grafton case (206 U. S. 333). 
' 2d and 3d. These questions may both be dis- 
cussed under one head: Is a homicide committed by 
an officer or an enhsted man while a member of a 
guard to prevent the escape of a military prisoner 
justifiable if the escape could have been prevented 
in no other way? 

The consensus of opinion now is that such a 
homicide is justifiable where the circumstances are 
such that a man of reasonable sense would consider 
such a killing lawful. If there is no cause to believe 
that he had malice against the person shot and he is 
acting entirely within his authority, either in 
obedience to the orders of a superior or from what 
he believes to be a sense of duty, he will be held 
blameless. 

Uh. Is there any distinction in military offenses 
similar to that between felonies and misdemeanors 
at common law? 

The answer as interpreted by this case is nega- 
tive. All offenses at military law are crimes (see 
Winthrop, 148, 149, 1040), and, as a rule, no dis- 
tinctions or gradations similar to those found at 
common law and in statutory law are considered in 
military practice. 

Because, as a rule, courts of the United States 
are statutory and have no common law practice as 
such, and as the practice is not uniform in the 



—47— 

United States, it will be seen that it would be necessary 
for Congress to define what would be misdemeanors 
and what felonies, and the different grades of felony. 
Congress has usually not done this, and consequently 
the military authorities, in the administration of 
military law, are spared the solution of many vexa^ 
tious problems. 

Thus, there is no murder of the first degree, nor 
murder of the second degree, nor accessaries before 
the fact, nor accessaries after the fact, nor grand 
larceny, nor petit larceny, etc. 

5th. I do not consider further discussion of this 
question necessary. I refer the reader to Winthrop, 
Vol. I, page 797, Edition of 1896. 

The finding of a court of inquiry is not a plea in 
bar of trial, but may be admitted in evidence as an 
expression of expert opinion in cases similar to the 
one before us. 

There was no minority opinion in this case. As 
Judge Brown heard the case alone, it was im- 
practicable to have a minority opinion. 

Hereto is appended a list of the principal cases 
cited in or analogous to United States vs. Clark. 



LIST OF CASES CITED 



U. S. SUPREME COURT 

Grafton Case, 206 U. S. 333. 
Drury vs. Lewis, 200 U. S. 1. 
Ohio vs. Thomas, 173 U. S. 276. 
In Re Neagle, 135 U. S. 1. 
Ex Parte Royal, 117 U. S. 241. 
Tenn. vs. Davis, 100 U. S. 257. 
Bates vs. Clark, 95 U. S. 204. 
Wilkes vs. Dinsman, 7 How. 89. 



—48— 
FEDERAL REPORTER 

Drury vs. Lewis, 129 Fed. R. 823. 

Campbell vs. Waite, 88 Fed. R. 102. 

In Re Waite (see Campbell vs. Waite), 81 

Fed. R. 359. 
In Re Fair, 100 Fed. R. 149. 
In Re Lewis, 83 Fed. R. 159. 

OPINIONS ATTORNEY GENERAL 

Steiner's Case, 6 Op. Att. Gen. 413. 



In Re FAIR 
Circuit Court, D. Nebraslca, 1900. 100 Federal Reporter 149 



Prepared by Captain T. Q. Donaldson, jr. , 8th Cavalry 



STATEMENT OF THE CASE 

Samuel Morgan, an enlisted man of Troop A, 8th 
U. S. Cavalry was held a prisoner at Fort Crook, 
Nebraska, under the charge of having deserted from 
his troop on the 7th of September, 1898. 

On the 17th of November, 1899, Morgan and an- 
other prisoner, named Deacon, while being guarded 
at Fort Crook by a sentinel, overpowered the latter, 
dismantled his gun and attempted to escape. Ser- 
geant William M. Simpson, Company M, 10th Infan- 
try, sergeant of the guard, ordered Corporal John S. 
Fair and Private Henry H. Jockens, of the same 
company and also members of the guard, to pursue 
and arrest the two fleeing prisoners, the order being 
in substance as follows: "Pursue the prisoners. If 
you sight them, and are positive it is the right party, 
halt them; and, if they do not halt, halt them a sec- 
ond time; and, if they do not halt, then fire upon 
them, and fire to hit them." 

Fair and Jockens pursued the prisoners across 
country and finally arrived at the village of La Platte, 
some three miles from Fort Crook, having in the 
meantime lost sight of them. 

Fair immediately tried to find a constable or other 
peace officer in the place but found there was none. 
He then notified the officer of the day at Fort Crook, 
by telephone, that he and Jockens were in La Platte 



—50— 

and that he believed the prisoners were in the vicin- 
ity. The officer of the day, Lieut. Welch, then 
ordered him to notify the civil authorities, and Fair 
told him there was no peace officer in the town. 

A few minutes after this, while Fair and Jockens 
were standing in the road trying to obtain some in- 
formation about the prisoners, Morgan passed them 
on the opposite side of the road. 

It was the dusk of the evening and Morgan was 
dressed in civilian clothes and Fair and Jockens were 
not certain of his identity, but they ordered him to 
halt. He paid no attention to the command but con- 
tinued to move on at a rapid walk. He was ordered 
the second time to halt when he turned towards them 
and said, "What in hell do you want?" Fair replied, 
"We want you to halt." 

Morgan then began to run, bending his body 
down. He was again ordered to halt, but paid 
no attention to the command and continued to 
run. Thereupon Corporal Fair gave the command 
to hre and both Fair and Jockens fired. Mor- 
gan was hit and died a few minutes afterwards. 

Both Fair and Jockens were tried before a gen- 
eral court-martial at Fort Crook on the charge of 
"manslaughter, to the prejudice of good order and 
military discipline," found not guilty and acquitted. 
A complaint was then made in due form before the 
county judge of Sarpy county, Neb., charging Fair 
and Jockens with the crime of murder in the killing 
of Morgan. 

They were arrested, examined by the county 
judge, and both held for trial in the state district 
court of Sarpy county and their bail fixed at $1,000 
each. They were unable to give this bail and were 
turned over to the custody of the county sheriff. 

They then went before the U. S. Circuit Court, 
District of Nebraska, on a writ of habeas corpus, 



—51— 

petitioning their release under the claim that their 
imprisonment was without authority of law. 

POINTS OF LAW TO BE DECIDED 

In the language of Judge Hunger, who was the 
district judge: 

"The principal question to be determined is, has 
the state court, within and for the county of Sarpy, 
Neb., jurisdiction to try petitioners for such killing 
of Morgan as a violation of the laws of the state. 
If the killing of Morgan was an act violative of the 
laws of the state, then the state court has jurisdic- 
tion, and the petitioners must be remanded to the 
custody of the sheriff. If, on the other hand, such 
killing of Morgan was not a violation of the laws of 
the state, then the state court is without jurisdiction, 
and the petitioners should be discharged." 

The judge also said that the following two prin- 
ciples of law were so well established as not to need 
extended citations of authorities to support them: 

"1st, that the trial and acquittal of petitioners 
by the court-martial is not a bar to an inquiry and 
prosecution by the proper civil authorities. ^ 

"2d, that an act done by an officer or agent of 
the United States in and about a matter solely within 
federal control, and in pursuance of authority given 
by the laws of the United States, is not an offense 
against the laws of the state. ^ 

"Neither can it be denied that when an officer 
or agent is held in custody by the process of a state 
court for an act done within the authority conferred 
on him by the laws of the United States, the United 
States government may protect itself by procuring 
the release of such officer through its judicial depart- 
ment. (Justice Strong in Tennessee v. Davis, and 
Chief Justice Marshal in Osborn v. Bank." ^ 

1 Coleman v. Tennessee, 97 U. S. 506, 24 L. Ed. 1118; U. 
S. V. Clark (C.C.) 31 Fed. 710. 

2 Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; In re 
Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 35. 

=• 100 U. S. 257, 25 L. Ed, 648; 9 Wheat, 865, 6 L. Ed. 234. 



—52— 

DISCUSSION OP THE CASE AND OPINION OP THE 
COURT 

The first question considered was, were the petition- 
ers, when Morgan was shot, acting in the line of du- 
ty as soldiers of the army? 

In considering this question, the court reviewed 
the 47th, 66th, and 48th Articles of War. In the first, 
desertion is shown to be a serious crime against the 
United States, punishable only by a court-martial; 
in the second, that soldiers charged with crime shall 
be confined until tried by court-martial or released 
by proper authority; and, in the third, that every de- 
serter shall be tried by a court-martial and punished, 
although his enlistment may have elapsed prior to 
his apprehension and trial 

It was shown in the evidence that Morgan was 
a deserter, that he had been arrested, and by over- 
powering the guard had attempted escape. Clearly, 
then, he was subject to arrest for the purpose of be- 
ing tried by a court-martial. 

The second question considered was, were the 
petitioners authorized to arrest Morgan ? 

In considering this question, the court cited au- 
thorities to show that military oflScers, and non-com- 
missioned oflficers and privates, when duly authorized, 
can arrest deserters' and that prior to October 1, 
1890, no peace officer or private citizen had the right 
to arrest or detain a deserter. ^ The act of the above 
mentioned date conferred the power on the civil au- 
thorities in the following language: 

"That it shall be lawful for any civil officer hav- 
ing authority under the laws of the United States, or 
of any state, territory or district, to arrest offenders, 
to summarily arrest a deserter from the military 

1 Davis, Mil. Law 425; Winthrop, Mil. Law. 173; Hut- 
chens v. Van Bokkelen, 34 Me. 126. 

- Kurtz V. Moffitt, 115 U. S. 487, 6 Sup. Ct. 148, 29 L. Ed. 
458. 



—53- 

service of the United States and deliver him into the 
the custody of the mihtary authorities of the general 
government". 

The state claimed that this act took away the 
authority previously held by military officers, non- 
commissioned officers and privates. On this the 
court said: 

" To this I cannot agree. I do not think Con- 
gress, by giving permission to civil officers to make 
arrests of deserters, intended to take away the au- 
thority then existing to make such arrests on the part 
of the officers of the army, but that the act was in- 
tended to enable civil authorities to aid and assist the 
military in apprehending deserters. While Congress 
might confer upon the civil authorities of the various 
states authority to make arrests of deserters against 
mihtary law, it is equally clear that the duty to make 
arrests could not be imposed upon such authorities." 

He found, therefore, that the petitioners had the 
lawful authority to apprehend Morgan. 

The question considered was whether the pe- 
titioners had the right to shoot Morgan in the at- 
tempt to secure his arrest. And, if not, was the 
shooting a crime against the laws of the State? 

In discussing this question, the court referred to 
the 69th Article of War which provides for the pun- 
ishment of an officer by court-martial who permits a 
prisoner to escape. Also to numerous regulations 
and orders of the Secretary of War, which he declar- 
ed had the force and effect of statutory law. He 
quoted as follows: 

' 'The power of the executive to establish rules and 
regulations for the government of the army is un- 
doubted. * * *Thepov/er to establish implies, necessari- 
ly, the power to modify or repeal, or to create anew. 
The Secretary of War is the regular constitutional 
organ of the President for the administration of the 
military establishment of the nation, and rules and 
orders publicly promulgated through him must 



—54— 

be received as the acts of executive, and, as such, 
be binding upon all, within the sphere of his legal 
aud constitutional authority. Such regulations can- 
not be questioned or denied because they may be 
thought unwise or mistaken." ^ 

Then followed quotations from the Manual of 
Guard Duty. ^ The court said that although the 
construction placed by the commanding officer of a 
military department upon the Articles of War and 
the regulations of the executive, promulgated by the 
Secretary, was not binding on the judicial depart- 
ment, yet such construction was entitled to great 
weight, and to the non-commissioned officer and pri- 
vate should be unquestioned and should afford them 
full protection when they act in accordance therewith. 

The point was here made by the state that the 
rule above stated applied only to attempted escapes 
and not to the present case where Morgan had actual 
ly made his escape. 

The court held that, even granting this, the rule 
was still material in determining whether the order 
of Sergeant Simpson to shoot if the command halt 
was not obeyed was one which should have been 
disregarded by the petitioners. 

"The law is that an order given by an officer to 
his private, which does not clearly and expressly 
show on its face its own illegality, the soldier is 
bound to obey, and such order is his full protection. ' ' ^ 

"While I do not say that the order given by 
Sergeant Simpson to petitioners was in all particulars 
a lawful order, I do say that the illegality of the 
order, if illegal it was, was not so much so as to be 
apparent and palpable to the commonest understand- 
ing. If, then, the petitioners acted under such 

1 U. S. V. Eliason, 16 Pet. 291, 10 L. Ed. 968. 

« Par. 297, (Old Manual); Cir. No. 3 of 1883, Hdqrs. Dept. 
Columbia, page 79 New Manual Guard Duty. 

••'Riggs vs. State, 3 Cold. 85; McCallvs. McDowell, Fed. 
Case No. 8573; U. S. vs. Clark (C. C), 31 Fed. 710; In Re 
Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. 



—55— 

order in good faith, without any criminal intent, but 
with an honest purpose to perform a supposed duty, 
they are not hable to prosecution under the criminal 
laws of the state. "^ 

"The evidence in this case shows that the peti- 
tioners acted entirely without malice; that the con- 
ditions existing at the place and time of the shooting 
were such as to cause an honest belief on their part 
that Morgan would, in all probability, effect his 
escape unless disabled; that they did not shoot with 
a purpose of killing, but only to disable. I am mind- 
ful of the rule of law that in a habeas corpus pro- 
ceeding the court will not examine the evidence for 
the purpose of determining whether the party 
should be pronounced guilty or innocent of the . 
offense for which he is imprisoned; yet in a case of 
this character, it is not only proper but necessary for 
the court to determine whether the parties acted 
wantonly and with criminal intent, or whether their 
acts, though wrongful, were errors of judgment 
only. 

"If they acted wantonly, with a criminal intent, 
then they were not acting within the scope of the 
authority conferred by the laws of the United States. 
On the other hand, if they acted without any crimi- 
nal intent, but in an honest belief that they were 
only discharging the duties of a soldier, then their 
offense, if offense it v/as, was not against the laws 
of the state, and in such case the state has no juris- 
diction. Petitioners were charged with the duty of 
arresting Morgan, a deserter from the army of the 
United States, who had escaped, or was attempting 
to escape, from confinement therefor, and, if what 
they did was in the honest belief that they were dis- 
charging their duty, they are not answerable to the 
criminal laws of the state." 

The court here quoted from Judge Shiras^ in 
support of this statement, in substance as follows: 
That when an officer is acting under the laws of the 
United States in the performance of his official duties 

Un Re Lewis (D. C), 83 Fed. 159, 

Hn Re Waite (D. 0.), 81 Fed. 359, 31 O. C. A. 403, 88 
Fed. 102. 



—56— 

and does acts which are claimed to be in excess of his 
authority, or to be in violation of private rights, he 
is not amenable to the laws or courts of a state in a 
criminal prosecution. If the acts committed violate 
the rights of individuals, a civil action for damages 
may be maintained, or protection sought under the 
laws of the United States. In either case it is the 
United States and not the state government that 
must apply the remedy. 

The court, continuing, stated that there was 
another point requiring consideration, and that was 
that the act done by the petitioners being an attempt 
to enforce a military law of the United States, a sub- 
ject over which the state had no control or concern, 
state statutes could have no application thereto. 

In support of this, the court quoted again from 
the above mentioned authority: 

"It will not be questioned that to sustain a 
criminal prosecution the statute upon which it is 
based must be binding upon the person and applicable 
to the acts which form the basis of the prosecution. 
If, when the acts were done, the same were not 
within the plane of the jurisdiction of the state, then 
the statute of the state has no application thereto, 
and it cannot be predicated of the acts that they 
constitute violations of the statutes of the state. "^ 

It has been held that the state courts have no 
jurisdiction of the crime of perjury committed in an 
examination before a United States commissioner; in 
testifying before a commissioner of the Circuit Court 
of the United States; in making affidavits under the 
acts of Congress relating to the sale of public lands; 
in testifying before a public state notary in regard 
to a contested election of a member of the United 
States House of Representatives. " 

lOhio vs. Thomas, 173 U. S. '276, 19 Sup. Ct. 453, 43 L. Ed. 
699. 

^State vs. Pike, 15 N. H. 83; Ex Parte Bridges, 2 Woods 
428, Fed. Case No. 1862; State vs. Shelley, U Lea 594; Rosa 
vs. State, 55 Ga. 1. 



—57— 

The court held that the decisions referred to were 
directly applicable to the case at bar. The petitioners 
were acting for the United States, under its mihtary 
authority— a subject which, by the Constitution, is 
solely under control of the general government. 
The state, therefore, cannot through any of its 
departments, regulate or limit the powers of the 
United States in regard thereto. Nor is the state 
concerned with the wisdom, justness, or expediency 
of the military laws, rules and regulations adopted 
by the United States, nor can their proper enforce- 
ment be measured and determined by state laws. 

"To require the petitioners to answer for their 
acts to the state courts is to permit the state courts 
to administer the military laws of the United States; 
to determine in a criminal proceeding the extent of 
authority possessed by the soldiers under those laws; 
to say when, and under what circumstances, the 
subordinate may disregard and disobey the orders 
and commands of his superior officers; to determine 
the amount of force which the United States may use 
to apprehend one charged with a military offense; in 
short, to nullify the rules and regulations adopted to 
insure the efficiency of the military service. As said 
by Mr. Justice Brown, when on the bench, in U. S. 
V. Clark: 

" ' * * * An army is a necessity— perhaps I 
should say an unfortunate necessity — under every sys- 
tem of government, and no civilized state in modern 
times has been able to dispense with one. To insure 
efficiency, an army must be, to a certain extent, a 
despotism. Each officer, from the general to the 
corporal, is invested with an arbitrary power over 
those beneath him, and the soldier who enlists in the 
army waives, in some particulars, his rights as a 
civilian, surrenders his personal liberty during the 
term of his enlistment; and consents to go and come 
at the will of his superior officers. He agrees to be- 
come amenable to the military courts, to be discip- 
lined for offenses unknown to civil law, to relinquish 
his rights to trial by jury, and to receive punishment 



-58— 

which, to the civiHan, seems out of all proportion to 
the magnitude of the offense.' " 

DECISION OF THE COURT 

* 'Finding, as I do, that the act of the petitioners in 
the shooting of Morgan, under the circumstances as 
shown by the evidence, was an act done in the per- 
formance of their duty as soldiers of the United 
States, it follows that the state courts are without 
jurisdiction in a criminal proceeding to determine 
whether they exercised proper care, judgment, and 
discretion in the discharge of that duty. For this 
reason the imprisonment of petitioners is in violation 
of 'their rights under the Constitution of the United 
States, and they are entitled to their discharge." 

LIST OF CASES CITED 

U. S. SUPREME COURT 

Coleman v. Tennessee, 97 U. S. 506. 

In re Neagle, 135 U. S., 10 Sup. Ct. 658, 34 

L. Ed. 55. 
Tennessee v. Davis, 100 U. S. 257. 
Osborn v. Bank, 9 Wheat. 865. 
Kurtz V. Moffitt, 115 U. S. 487, 6 Sup. Ct. 

148, 29 L. Ed. 458. 
U. S. V. Eliason, 16 Pet. 291, 10 L. Ed. 967. 
In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 

34 L. Ed. 636. 
Ohio V. Thomas, 173 U. S. 276, 19 Sup. Ct. 

453, 43 L. Ed. 699. 
In re Loney, 134 U. S. 372, 10 Sup. Ct. 584, 

33 L. Ed. 949. 

FEDERAL REPORTER 

U. S. V. Clark, (CO 31 Fed. 710. 
McCall V. Mc Dowell, Fed. Case No. 8673. 
In re Lewis, (D.C.) 83 Fed. 159. 
In re Waite, (D.C.) 81 Fed. 359, 31 C. C. A. 
403, 88 Fed. 102. 

Ex parte Bridges, 2 Woods 428, Fed. Case 
No. 1862. 



—59— 
OTHER CASES AND REFERENCES 

Davis, Mil. Law 425. 

Winthrop, Mil. Law 173. 

Hutchins v. Van Bokkelen, 34 Me. 126. 

Act Oct. 2, 1890, 26 Stat. 648. 

Riggs V. State, 3 Cold. 85. 

State V. Pike, 15 N. H. 83. 

State V. Shelley, 11 Lea 594. 

Ross V. State, 55 Ga. 192. 

State V. Adams, 4 Blackf. 146. » 

People V. Kelly, 38 Cal. 145. 

State V. Kirkpatrick, 32 Ark. 117. 



UNITED STATES v. LIPSETT (Sheriff of Chippewa Co. 
Ex Parte Gillette 



District Court, W.D. Michigan, 1907. 156 Federal Reporter 65 



Prepared by Captain Samuel G. Jones, 11th Cavalry 



STATEMENT OF THE CASE 

The facts are substantially these: 

On or about July 22, 1907, Cyrus Gillette, a 
private of Co. M, 7th Infantry, stationed at Fqrt 
Brady, adjacent to Sault St. Marie, Mich., was 
posted as a sentinel over two military prisoners, who 
were engaged in work near the entrance to the mili- 
tary reservation. At least one of these prisoners, 
Hodson, was charged v/ith desertion. While so em- 
ployed the prisoner Hodson attempted to escape, in 
such attempt running easterly in a public street. 
Gillette immediately called upon the prisoner to halt, 
and repeated his call two or three times. Hodson 
ignored the call to halt, and continued his flight at 
full speed, Gilette following him as rapidly as he 
could (having a lame knee, and having been recently 
discharged from the hospital), loading his rifle as he 
went with the guard cartridge, in preference to the 
service cartridge, the former having a smaller charge 
of explosive and a differently shaped bullet from the 
latter, so as not to carry the projectile to such a great 
distance as the service cartridge does. Gillette held 
his fire some distance, while running, because of 
some children whom he saw in the street down which 
he was pursuing the escaping prisoner. When from 
30 to 100 feet from the reservation limits Gillette fired 

60 



—Sl- 
at Hodson, who was from 125 to 200 feet in advance 
of him, still running and trying to escape. The bul- 
let passed over Hodson's head and accidently struck 
and killed Miss Elizabeth Cadenhead, who with 
friends, returning from a visit to Fort Brady, was 
walking along the street on which Gillette and Hod- 
son were running and in the same direction, being at 
the time of the shooting from 375 to 475 feet ahead 
of Gillette, and thus from 250 to 275 feet ahead of 
Hodson. There is no claim that Gillette saw Miss 
Cadenhead, or any other member of her party, either 
before or at the time of the shooting; nor that he 
knew of their presence in the street. The point 
where Miss Cadenhead stood when the shot was fired 
was about five feet higher than the place occupied 
by Hodson. 

After the firing Hodson continued his flight, 
turning from the street upon which he was running 
south about 100 feet, and then southeasterly about 
130 feet, and hid in a clump of bushes and trees on a 
private residence lot, where he was found two hours 
later. After he turned south Gillette again fired at 
him but without effect. Gillette was familiar with 
the Manual of Guard Duty, United States Army, 
issued by authority of the Secretary of War, and 
which contained the following provision: 

"If a prisoner attempts to escape, the sentinel 
will call halt. If he fails to halt after the sentinel 
has once repeated his call, aud there be no other 
possible means of preventing his escape, the sentinel 
will fire upon him." 

This manual also contained a syllabus of the 
decision of the U. S. District Court for the Eastern 
District of Michigan in the case of U. S. vs. Clark, 
31 Fed. 710, which contained, among other things, 
this statement: 

"It seems that the sergeant of the guard has a 



-62— 

right to shoot a military convict if there be no othei* 
possible means of preventing his escape." 

And said manual also contained the following 
extract from Circular No. 3, series 1883, Head- 
quarters Department of the Columbia: 



"A sentinel is placed as a guard over prisoners 
to prevent their escape, and, for this purpose, he is 
furnished a musket, with ammunition. To prevent 
escape is his first and most important duty." 



"I suppose the law to be this: That a sentinel 
shall not use more force or violence to prevent the 
escape of the prisoner than is necessary to effect 
that object, but, if the prisoner, after being ordered 
to halt, continues his flight, the sentinel may maim 
or even kill him, and it is his duty to do so." 

Immediately after the shooting Gillette was tried 
before a general court-martial convened at Fort 
Brady, Michigan, on a charge of manslaughter, in 
violation of the 62d Article of War, the specification 
being that he did "unlawfully, wilfully and felo- 
niously kill Miss Elizabeth Cadenhead with a United 
States magazine rifle, loaded with powder and ball." 
He plead not guilty, and was acquitted, the findings 
and acquittal being approved by the reviewing 
authority in the following words: 

' ' In the foregoing case of Private Cyrus Gillette, 
Company M, 7th Infantry, the evidence of record 
clearly shows that the accused, in compliance with 
his orders, pursued and shot an escaping prisoner. 
There is nothing to show that the accused had any 
cause to believe that the unfortunate accident that 
took place was liable to occur from his obeying the 
provisions of the guard manual, and as the shot was 
fired without either malice or recklessness on his 
part, in the evident belief that he was only discharg- 
ing his duty to the United States government, the 
finding and acquittal are approved." 



-63- 

Gillette was accordingly restored to duty, but 
was subsequently arrested on a warrant issued by a 
state magistrate for Chippewa County, Michigan, 
charging him with manslaughter in killing Miss 
Cadenhead. Waiving examination he was held to 
trial before the Circuit Court of Chippewa County, 
and pending trial was committed to jail in default of 
bail. The United States through its District Attor- 
ney, acting under authority of the Attorney General, 
made application before the U. S. District Court for 
the Western District of Michigan, for a writ of habeas 
corpus, upon the ground that the state court was 
without jurisdiction to try Gillette for the offense 
charged. 

The prisoner was produced in court, in obedience 
to the writ, and a hearing was had upon a stipulation 
of facts, no conflict of testimony being presented. 
No claim is made on the part of the state that Gil- 
lette had any malice or ill-will towards either Hodson 
or Miss Cadenhead, or that the homicide was other 
than accidental, nor is it asserted, nor any evidence 
adduced reasonably tending to show that Gillette, in 
firing the shot, acted otherwise than in good faith 
and in the supposed performance of his duty. 

POINTS OF LAW TO BE DECIDED 

The contention of the District Attorney was 
that the state was without jurisdiction, because: 

(a) The act alleged to constitute the offense was 
done by Gillette in the performance of his duty un- 
der the laws and authority of the United States. 

(6) The acquittal of Gillette by the court-martial 
is a bar to further prosecution in the state courts. 

The defense of the writ, urged on behalf of the 
state, is that upon the record there exists a question 
of fact: 

(c) Whether there was any other possible means 



—64- 

of preventing the escape of the fugitive, than by 
firing? 

(d) Whether, under the circumstances, disclosed 
by the record— the street being unobstructed, and 
it thus having been possible to discover that Miss 
Cadenhead and her companion v^^ere in the line of 
fire — Gillette had exercised due care in firing? 

(e) If it should be found that Gillette acted 
without the exercise of due care, his act became un- 
lawful, and the homicide would be manslaughter, 
and the state has the right to have the questions of 
fact, referred to, tried by a jury in the state court. 

DECISION OF THE COURT ON THESE POINTS 

(a) As to the effect of former jeopardy, the 
court states in substance: 

Whatever may have been the status of the 
authorities before the decision in the case of Grafton 
V. U. S. ^ that decision leaves open the question 
of the effect of a trial by a U. S. court-martial upon 
the right of trial in a state court, for the same act 
charged as constituting an offense of the same kind 
and nature. There have been two decisions in the 
district courts to the effect that such acquittal by 
court-martial is not a bar, viz. In re Clark", In re 
FairS both of which cases were decided previously 
to the recent decision of the Supreme Court in Graf- 
ton v. U. S. 

The court then dodges the issue: 

"I do not find it necessary to pass upon the 
question of former jeopardy, because, in my judg- 
ment, this case can be disposed of on other grounds. " 

(6) The court then goes on to assert that the 
jurisdiction of the U. S. District Judge to act in this 
matter is undoubted. The Revised Statutes* give 

' Grafton v. U. S., 206 U. S. 333, 27 Sup. Ct. 749, 51 L. Ed. 
1084. 

2 In re Clark, (C.C.) 31 Fed. 710. 

3 In re Fair, (C.C.) 100 Fed. 149. 

* Sees. 752, 753 Rev. Stat. U. S. Comp. St. 1901, p. 592. 



—65- 

to judges of the circuit and district courts authority 
to issue writs of habeas corpus to inquire into the 
cause of the restraint of Hberty, when a prisoner is 
in custody for an act done in pursuance of a law of 
the United States. 

And it follows that the judge may inquire wheth- 
er the alleged act was done in the performance of a 
duty arising under a law of the United States. And 
the court further reasons that if the act done by Gil- 
lette was an act done in performance of duty as a 
soldier in the military service of the United States, it 
was of- necessity done in pursuance of a law of the 
United States, and so was not within the jurisdiction 
of a state court to try. 

The court refers to several decisions sustaining 
the enforcement of the statute, and his position: 

In re Neagle:^ A deputy marshal assigned to 
protect Justice Field against apprehended violence, 
killed a man alleged to be attempting a deadly as- 
sault upon the justice. Neagle was arrested by the 
California authorities and sued out a writ of habeas 
corpus on the ground that the killing of Justice Field's 
assailant was an act done in the discharge of his 
duty as an officer of the United States, and was 
therefore not murder; that he was held by the state 
authorities for an act done in pursuance of a law of 
the United States, and was entitled to his discharge. 
This was granted. 

In re Waite (D. C.):" A United States pension 
examiner was arrested under a statute of the state of 
Iowa, charged with maliciously threatening to accuse 
a person of a crime in order to compel him to do an 
act against his will. The act alleged to constitute a 
crime was claimed by the prisoner to have been done 
while in the discharge of his duty as such an ex- 

1 In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. 
nn re Waite (D. C), 81 Fed. 359, 88 Fed. C. C. A. 403. 



aminer, in pursuance of a law of the United States, 
and relief was granted him on the ground that the 
state court had no jurisdiction to try him for an act 
committed in line of duty. 

In re Lewis :^ Special employes of the United 
States Treasury Department were arrested under 
the laws of Washington (state) for alleged robbery. 
The prisoner claimed the act was done in the dis- 
charge of his ♦duty in the service of the United 
States. Relief was granted on the ground that the 
a'ct was done in pursuance of the authority of the 
United States and the state courts were without 
jurisdiction to try. 

In re Fair (C. C.):^ A soldier in the military 
service of the United States, a guard over mihtary 
prisoners at Fort Crook, Neb., was arrested by the 
state civil authorities on the charge of murder in the 
killing of a military prisoner while attempting to 
escape. Held that he was acting under authority of 
the United States, and the state authorities were 
therefore without jurisdiction to try him. 

In each of the cases cited relief was granted on 
habeas corpus, and it was, of course, claimed in 
each that no crime in fact was committed, and that 
the act alleged to constitute a crime was in fact 
lawful. 

The trend of judicial decisions on this subject, 
apparently unbroken, is well illustrated in the fol- 
lowing quoted extract from the case of In re Waite 
(D. C.):^ 

"All these cases hold clearly, however, that 
when it is made to appear that an officer of the 
United States, or one acting under the authority of 
a law of the United States, is sought to be held in a 
state court for punishment under the provisions of a 

iln re Lewis, 83 Fed. 159. 

^In re Fair (C. C), 100 Fed. 149. 

■'In re Waite (D. C), 81 Fed. at p. 365. 



-67— 

statute, for an act done while in the performance of 
a duty he owed to the United States, the federal 
courts, either by removal, where the statute provides 
for that mode, or by writ of habeas corpus, must 
assume jurisdiction over the matter, and prevent 
further action in the state court, and the principle 
underlying the case is that the state has no juris- 
diction over a person when he is acting under the 
authority of the United States." 

The court then discusses the question that it 
might be urged that the prisoner having a remedy 
by way of review by the Supreme Court, in case of 
his conviction by a state court, should not be given 
the immediate relief by habeas corpus, and quotes 
from language used by the Circuit Court of Appeals 
in the case of In re Waite, as follows:^ 

"This contention, we think, is without merit. 
While it is true that the relief prayed for by the 
petitioner could have been obtained in the usual way, 
by a writ of error, yet, in our judgment, the case at 
bar does not belong to the class of cases in which a 
person in custody under the warrant of a state 
court should be compelled to seek relief by appeal or 
writ of error rather than by a writ of habeas corpus. 
* * * The arrest of federal officers or other per- 
sons for acts lawfully done in discharge of their 
duties under the federal laws impairs to a certain 
extent the authority and efficiency of the general 
government; and for that reason no court, so far as 
we are aware, has ever hesitated in that class of 
cases to discharge a petitioner from custody by writ 
of habeas corpus, when it appeared on a hearing of 
the case that the petitioner was entitled to be re- 
leased from imprisonment." 

The court then goes on to state that while the 
federal judge in such cases, in habeas corpus pro- 
ceedings, will not hear evidence for the purpose of 
determining the guilt or innocence of the prisoner, 
yet it is his duty to examine the evidence to determine 

iln re Waite, 88 Fed. at p. 107; 31 C. C. A. 403. 



—68— 

whether the act, alleged to be criminal, was done in 
the performance of duty in the service of the United 
States, and in this connection invites attention to the 
language used in the decision in the Lewis case:^ 

" It is true that this court could never adjudicate 
that question (respondent's guilt) finally, so as to 
convict and punish these men for robbery, if they 
were robbers; but in a proceeding of this kind it is 
absolutely necessary for the court to consider the 
question so far as to determine whether the officers 
apted wantonly, and with criminal intent, and 
whether insofar as their acts may be regarded as 
wrongful, they were mere errors of judgment. 
Take for instance the Neagle case, 135 U. S. 1, 10 
Sup. Ct. 658. It is not to be conceived that, if 
Neagle had actually committed murder, the federal 
court would have shielded him from punishment. 
Suppose that Judge Terry had made no assault upon 
Judge Field, and there were no such appearances as 
to give reasonable grounds to a person in the situa- 
tion that Neagle was in to suppose that it was neces- 
sary to use a deadly weapon in defense of Judge 
Field, and that while acting as a protector for Judge 
Field, in accordance with instructions from the 
Attorney General of the United States, he had 
wantonly shot and killed Judge Terry or some other 
man, so that his act would have been actual murder. 
Certainly Judge Sawyer and the Supreme Court of 
the United States would not have justified the use of 
the writ of habeas corpus to shield him from punish- 
ment." 

The court then goes on to explain that while 
language of similar purport is found in several of the 
cases cited it does not mean that a soldier from the 
mere fact that he is in the service of the United States, 
is thereby rendered immune from punishment under 
the state laws. The distinction to be drawn is clear- 
ly expressed in In re Waite^ where the Federal 
Court after holding that the state court was without 

>In re Lewis, 83 Fed. at p. 160. 
'In re Waite (D. C.) 81 Fed. at p. 363. 



—69— 

jurisdiction to try a federal officer for an act done in the 
discharge of his federal duty felt constrained to ex- 
plain: 

"By this it is not meant to assert that because a 
person is an officer or agent of the federal govern- 
ment he is thereby excepted from the jurisdiction 
of the state or the binding force of its laws. The 
mere fact that when the acts done by him were done 
he was an officer of the United States, charged with 
certain duties to that government, will not afford him 
immunity from prosecution under the laws of the 
state. Nor will the mere fact that he claims that 
the acts done were within the line of his official duty 
afford him protection, if the acts are such as to show 
that the claimed immunity is a mere subterfuge, and 
and that under no fair consideration of his official 
duty could he have assumed that he was acting in 
his official capacity when the acts complained of 
were done by him." 

Express authority is conferred upon a federal 
judge in habeas corpus proceedings to pass upon 
questions of fact. Rev. Stat. §761. * 

"The court, or justice, or judge shall proceed in 
a summary way to determine the facts of the case, 
by hearing the testimony and arguments, and there- 
upon to dispose of the matter as law and justice re- 
quire." 

(c) As to the contention that a jury trial is nec- 
essary. 

It is to be noted that in each of the cases above 
referred to, inquiry was entered into by the court or 
judge hearing the habeas corpus proceedings, and 
questions of fact were actually decided by the court 
or judge. A notably conspicuous case of this is that 
of In re Neagle" in which were tried out the dis- 
puted questions of fact as to whether the United 
States marshal was justified in killing the assailant 

'Rev. Stat. §761, U. S. Comp. St. 1901., p. 594. 
2 In re Neagle, 135 U. S. 1. 



—ro- 
of Judge Field. When the question was raised be- 
fore it, on appeal, the Supreme Court said: 

"To the objection made in the argument that the 
prisoner is discharged by this writ from the power 
of the state court to try him for the whole offense, 
the reply is that if the prisoner is held in the state 
court to answer for an act which he is authorized to 
do by a law of the United States, which it was his 
duty to do as marshal of the United States, and if in 
so doing that act, he did no more than was proper 
and necessary for him to do, he cannot be guilty of a 
crime under the laws of the state of California. * * * 
The Circuit Court of the United States was as com- 
petent to ascertain these facts as any other tribunal 
and it was not at all necessary that a jury should be 
impanelled to render a verdict on them." 

The Supreme Court here decided that a jury 
trial was not necessary. In Drury v. Lewis it 
it unequivocally stated its opinion in favor of it, in 
cases of disputed fact, unless extraordinary and ex- 
ceptional circumstances be shown. In this connec- 
tion the Supreme Court said: 

"It is an exceedingly dehcate jurisdiction given 
to the Federal Courts by which a person under in- 
dictment in a state court and subject to its laws may 
by the decision of a single judge of the Federal 
Court, upon a writ of habeas corpus, be taken out of 
the custody of the officers of the state and finally dis- 
charged therefrom, and thus the trial by the state 
courts of the indictment found under the laws of a 
state be finally prevented. Cases have occurred of 
so exceptional a nature that this course has been pur- 
sued. Such are the cases. In re Loney and In re 
Neagle, but the reason for the interference of the 
Federal Court in each of these cases were extraordi- 
nary, and presented what this court regarded as such 
exceptional facts as to justify the interference of the 
Federal tribunal." 

In the case of Drury v. Lewis there was a con- 
flict of evidence as to whether the act complained of 
was wanton. If wanton, the act could not have been 



—71— 

committed in performance of any duty imposed by 
federal law, and the United States Circuit Court de- 
clined to determine that fact and give relief to the pe- 
titioners. 

The Supreme Court upheld this decision, saying 
in substance that the guilt or innocence of the ac- 
cused rested on the determination of that single fact, 
and as the act was done within the jurisdiction of 
the state, it was for the state court and not the Uni- 
ted States Circuit Court to hear and determine evi- 
dence on that question of fact. 

From which we see, that where there is a conflict 
of evidence, a question of disputed fact, as to wheth- 
er the act was wanton, and therefore criminal, and 
the act was done within the jurisdiction of the state, 
the federal courts will, in general, dechne to deter- 
mine the question of fact, but leave it to be passed 
upon by the state court, refusing immediate relief to 
the petitioners through writ of habeas corpus, and leav- 
ing ultimate remedy to be sought on writ of error on 
appeal, after trial has been had in the state court. 

However the case under consideration in this 
summary is not in conflict with the case of Drury vs. 
Lewis ^ for in the case herein presented there is no 
conflict of testimony as to whether the act com- 
plained of was wanton. 

{d) As to the question, whether the prisoner 
(Gillette), in firing the shot, was in fact acting in 
the supposed performance of his duty. 

The court then goes on to say: 

"The order and rulings contained in the Guard 
Manual were properly relied upon by the guard, be- 
cause such orders and rulings, were not in fact illeg- 
al, but, on the contrary, were legal. If, therefore 
the guard, in shooting as he did, was acting in the 

' Drury vs. Lewis, on Appeal from U. S. Circuit Court for 
West Dist. Penn., 220 U. S. 1. 



-72— 

supposed exercise of his duty, without malice or 
criminal intent— and as already said, there is no 
claim of such— he is not liable to prosecution in the 
state court from the fact that from misinformation 
or lack of good judgment he transcended his author- 
ity, even though he might be liable to a civil action 
at the suit of the injured party. This proposition is 
sustained by the decisions in the cases of Fair, Lewis, 
and Waite, above cited." 

The court says further: 

' "It is well settled that if a homicide be commit- 
ted by a military guard without malice, and in the 
performance of his supposed duty as a soldier, such 
homicide is excusable, unless the order or authority 
relied upon was such that a man of ordinary sense 
and understanding would know that it was illegal. 
This proposition is affirmed in In re Clark, supra, and 
in In re Fair, supra. As pointed out in In re Clark, 
it is the duty of the guard pursuing a deserter to 
call 'Halt!' and to repeat the call, and if there is no 
other reasonable means to prevent escape to shoot. 
A guard failing to do so would be guilty of a most 
serious military offense, and liable to severe punish- 
ment therefor. The manual of guard ^ duty, with 
which the prisoner was familiar contained an express 
ruling of the military authorities that if a prisoner, 
after being ordered to halt, continues his flight, it is 
the duty of the guard to shoot, even maiming or kill- 
ing." 

The court then explains, that by reference to 
this ruling, it was not intended to hold that it was 
the duty of the guard to shoot in any event, but that 
the guard should exercise his discretion as to wheth- 
er it was necessary to do so to prevent escape. 

The court continues; 

(e) * 'Does it satisfactorily appear that it seemed 
to the respondent reasonably necessary to shoot at 
the prisoner so attempting to escape? 

" It is my duty sitting as judge in this proceed- 
ing to determine this fact. If a reasonable question 

iManual of Guard Duty, U. S. Army, 1902, p. 68 et. seq. 



—73— 

existed, under a conflict of testimony, whether the 
guard was acting wantonly, rather than in the sup- 
posed performance of his duty, or otherwise stated, 
whether it was believed by him, at the time to be 
reasonably necessary to shoot, I should perhaps exer- 
cise the discretion which rests in me, in favor of 
submitting the question to a jury in the State court; 
but there is no conflict of testimony, and the sugges- 
tion that different minds might draw different infer- 
ences from undisputed facts furnishes no reason why 
I should abdicate my responsibility to decide in this 
proceeding, whether the guard in shooting at the 
fleeing deserter, acted in the supposed discharge of 
his duty. That he did so act is clear. There is no 
room for reasonable inference to the contrary. It 
is conceded that he acted without malice or ill will. 
His good faith is not impugned. 

* * * That it seemed to the guard reasonably 
necessary to shoot is clear. The guard was lame and 
lately discharged from the hospital; the deserter was 
apparently gaining on him, disregarding the order to 
halt, determined to escape, and continuing to flee 
even after the shot in question and still another was 
fired, and actually evading discovery for two hours 
longer." 

(/) "That he was not criminally reckless, is 
shown: 

"By his holding hisfire, until those seen by him 
in the line of fire were out of the way. The fact that 
in the excitement of pursuit, with his attention upon 
the fugitive, then on lower ground, he failed to see 
the pedestrians 400 feet ahead, and on higher ground, 
does not, under the agreed facts, show recklessness. 

* * * Even though it might have been more 
prudent for the guard to have exercised still greater 
care in the prevention of this deplorable accident, 
such facts would not convert this accident into a 
crime, for he was not engaged in an unlawful act. 
A homicide by such misadventure, under such cir- 
cumstances, is not criminal. U. S. v. Meagher.^ 
The case presented to my mind is such that if I were 
sitting with a jury on a trial of the case I should 

« U. S. V. Meagher, (C.C.) 37 Fed. 875. 



—74— 

deem it my duty to instruct the jury to acquit the re- 
spondent." 

(g) That the United States may protect itself by 
bringing this proceeding through its judicial depart- 
ment, is established by authority. 

' 'It is only necessary to cite the matter of Fair, 
before referred to. Indeed, in view of the breadth of 
the statute, it should scarcely be necessary to cite 
authorities upon that proposition. 

"* * * The State authorities have acted pru- 
dently m bringing the matter to the attention of the 
civil tribunals, and thus affording this opportunity 
for a judicial determination of the prisoner's Hability 
to prosecution." 

SUMMING UP AND ORDER OF COURT 

"Finding as I do, upon this question of fact, that 
in firing the shot in question, the prisoner was acting 
in the discharge of his duty as a soldier in the mili- 
tary service of the United States, and accordingly 
the State authorities have no jurisdiction to try him 
for the homicide in question, it becomes my duty to 
order his release. 

"It is accordingly ordered that he be released 
from confinement, and that he be restored to the 
military service of the United States, according to 
the terms of his enlistment." 

LIST OF CASES CITED 

In Re Neagle, 10 Sup. Ct. 658, 672, and 135 
U. S. 1, and at p. 75; Grafton v. U. S., 27 
Sup. Ct. 748, 206 U. S. 333. 

In Re Waite, 88 Fed. 102. 

In Re Loney, 134 U. S. 372. 

Drury v. Lewis, 200 U. S. 1. 

In Re Clark, (C.C.) 31 Fed. 710. 
In Re Fair, (C.C.) 100 Fed. 149. 
U. S. V. Meagher, (C.C.) 37 Fed. 875. 

In Re Waite, (D.C.) 81 Fed. 359, at pp. 107 

and 363; 31 C. C. A. 403. 
In Re Lewis, (D.C.) 83 Fed. 159, 160. 



—75 • 

In Re Neagle, 34 L. Ed. 55. 
Grafton v. U. S., 51 L. Ed. 1084. 

Sees. 752, 753 and 761 Rev. Stat. (U.S. Comp. 

Stat. 1901, pp. 592, 594). 
Manual of Guard Duty, U.S. Army, 1902, 

Ed., pp. 68 et seq. 



UNITED STATES, ex rel. DRURY et al. v. LEWIS, 
JAIL WARDEN 



Circuit Court, W. D. Pennsylvania, 1909 
129 Federal Reporter 823 



Supreme Court of the United States, 1906 
200 U. S. 1. 



Prepared by Captain Alfred W. Bjornstad, 28th In- 
fantry. 



DRURY V. LEWIS 
STATEMENT OF THE CASE 

Allegheny Arsenal, in the city of Pittshurg, Pa., 
is government land over which the United States ex- 
ercise general and exclusive criminal jurisdiction. 

In September, 1903, the arsenal was administer- 
ed as a sub-post of Fort Niagara, N. Y., and was 
garrisoned by 2d Lieutenant R. W. Drury, 9th Infan- 
ty, commanding, and twenty enlisted men, one of 
whom was John Dowd. Drury's duty in connection 
with government property was prescribed by para- 
graphs 739, 740, 764 and 766 of the Army Regulations 
of 1901. These requirements were not inconsistent 
with any laws of a superior law-making authority. 

Prior to September 10, 1903, a series of minor de- 
predations had been committed in and about the ar- 
senal buildings by unkown persons. Copper spouts 
and eaves had been torn from the buildings and stolen. 
The duty and authority of the commander included 
the summary arrest of persons perpetrating these 

76 



depredations. The present regulation on the sub- 
ject is in paragraph 694 (A.R. 1908) and reads, "Per- 
sons caught in the act of steahng pubhc property 
shall be summarily arrested by the troops and turned 
over to civil authorities for trial". In September, 
1903, this regulation w^as included in paragraph 771, 
A. R., 1901. (See also, Sec. 161, Rev. Stat, and 
Campbell vs. Thayer, 88 Fed. 102). 

Drury's immediate superior, the commanding of-' 
ficer at Fort Niagara, had directed Drury to make 
every effort to stop the depredations, to establish 
patrols, and to apprehend and arrest all offenders. 

On the morning of September 10, 1903, Drury 
was informed that some persons were again stealing 
copper from one of the arsenal buildings. He hur- 
ried at once with two privates of the guard, one of 
whom was Dowd, beyond the arsenal grounds by the 
streets of the City of Pittsburg to the vicinity of the 
building from which the copper was supposedly be- 
ing taken. The routes pursued, one by Drury and a 
different one by the detail of the guard, were selected 
with a view to intercepting the depredators. Before 
leaving the two privates Drury instructed them to 
arrest any person coming from the arsenal. Drury, 
proceeding down a street which runs along, but out- 
side, of the arsenal wall, came upon three or four 
young men who fled in different directions on his ap- 
proach. One of the men, named Crowley, was then 
seen by Dowd running away from the arsenal. When 
Crowley was about 100 yards from the arsenal wall 
he was shot by Dowd and died the same day. At the 
time of the shooting Crowley, Dowd and Drury were 
beyond the limits of the arsenal and within the terri- 
torial jurisdiction of the State of Pennsylvania. 

It was ascertained afterwards that Crowley was 
in fact a member of a party engaged in stealing cop- 
per, as suspected by Drury and Dowd. Hence there 



-78- 

was ample authority for the arrest of Crowley by 
Drury or his subordinates. And Crowley being thus 
a fleeing felon, force could be used sufficient to pre- 
vent his escape, but no more than seemed reasonably 
necessary in the circumstances. From this point 
there was a dispute as to facts. On the one hand 
evidence was produced tending to prove that Dowd 
cried "halt" several times and that he fired only 
when it was clear that Crowley did not intend to halt. 
On the other hand evidence was produced tending to 
show that Crowley did halt, and that he shouted "I 
give up", or words to that effect, but that at this 
juncture Drury commanded "fire", whereupon Dowd 
fired. 

Drury and Dowd were indicted by the grand jury 
of Allegheny County, Pa., and arrested by the State 
authorities under the charge of murder, as to Drury, 
and manslaughter, as to Dowd. 

Before trial, Drury and Dowd attempted to effect 
their discharge from the State jurisdiction by habeas 
corpus proceedings instituted in the federal Circuit 
Court for the Western District of Pennsylvania, but 
the decision of this court was adverse to the peti- 
tioners. 129 Fed. 823. 

An appeal was taken to the Supreme Court of 
the United States. Here, also, the decision of the 
court was adverse to the petitioners. 200 U. S. 1. 
And Drury and Dowd were remanded to the custody 
of the State for trial under the indictment. 



Note. — At the trial new witnesses were pro- 
duced testifying in corroboration of Dowd who in- 
sisted that Crowley had evinced no disposition to 
halt, and had, in fact, gained such advantageous 
ground that it seemed likely he would soon disappear 
from Dowd's view. Drury and Dowd were accord- 
ingly acquitted, having acted properly within the 
scope of their duty. 



—79— 
QUESTIONS OF LAW 

In the habeas corpus proceeding in the Circuit 
Court, as well as on appeal to the Supreme Court, 
the following questions of law came up for decision: 

1. What is the duty of a federal court, under 
the acts of Congress, in habeas corpus cases where, 
in advance of trial by the state, an effort is being 
made to defeat the jurisdiction of the state? 

2. To what extent may federal courts inquire 
into the facts in order to determine the issue in 
habeas corpus proceedings? 

3. Where an act is done supposedly in the 
proper discharge of a federal duty, or within the 
scope of federal authority, under what circumstances 
will federal courts permit the exercise of state juris- 
diction and under what circumstances will they 
refuse jurisdiction to the state by ordering the dis- 
charge of the accused? In other words, to what 
extent are federal officers or agents amenable to 
state criminal jurisdiction for acts done in the dis- 
charge of their duty? 

DECISION 

1. As to the first question: 

The U. S. Circuit Court has, under the federal 
Constitution and statutes, the power to inquire into 
the reason or authority for the restraint of a person 
by the state jurisdiction, prior to trial under the 
same, where the petitioner contends that the acts 
constituting the supposed offense against the state 
were done in pursuance of a law of the United States, 
or where the petitioner is restrained in violation of 
the Constitution, treaties or laws of the United 
States. In re Neagle, 135 U. S. 1; In re Waite, 81 
Fed. 359; Ohio vs. Thomas, 173 U. S. 276; Sec. 761 
Rev. Stat. 

While the Circuit Court has this jurisdiction and 



—80- 

will issue the writ of habeas corpus under the con- 
ditions mentioned, it will not exercise the jurisdiction 
to the extent of ordering the discharge of the peti- 
tioner, and thus delay the state jurisdiction, except 
it be in a case of peculiar urgency. The normal 
procedure will be to leave the petitioner to be dealt 
with by the courts of the state, and, after the trial, 
review the case, possibly on petition for a writ of 
habeas corpus, but preferably on a writ of error. 
Ex parte Roy all, 117 U. S. 241; Whitten vs. Tomlin- 
^on, 160 U. S. 231; Baker vs. Grice, 169 U. S. 284. 

The federal courts have the power to take an 
accused out of the jurisdiction of the state by order- 
ing his discharge, but it is a power to be exercised 
carefully and conservatively. Exceptional cases 
have occurred where the state has been wholly 
without jurisdiction and the accused has been ordered 
discharged prior to trial. In re Loney, 134 U. S. 372; 
In re Neagle, 135 U. S. 1; In re Waite, 81 Fed. 359. 

The general rule that the courts of the state 
should be permitted to determine the guilt or in- 
nocence of the accused is necessary to insure a com- 
petent determination of this issue. For, if the juris- 
diction of the state is defeated, there is no court 
remaining competent to try the case. No federal 
court would have jurisdiction. Crowley was a citizen 
of Pennsylvania, not in the military service of the 
United States, and was killed within the city of 
Pittsburg— not on land over which the United States 
had general criminal jurisdiction. 

2. As to the second question: 

In a hearing upon a writ of habeas corpus, the 
federal court is necessarily compelled to investigate 
the facts in connection with the alleged offense. 
This is so because the question before the court is as- 
to the jurisdiction of the state, and it is necessary to 
ascertain whether the facts show probable cause to 



-si- 
believe that an offense has been committed, triable 
by the state court, or whether the facts show con- 
duct which entitles the petitioner to the intervention 
and protection of the federal authority. The de- 
termination of the facts is not for the purpose of de- 
ciding the question of guilt or innocence. 

In the case of Drury and Dowd this can be done 
legally only by a jury in a state court of Pennsylvania, 
But if the facts clearly show that Drury and Dowd 
were in the proper execution of a federal duty and 
within their authority, there is no longer probable 
cause to believe that an offense has been committed 
against the peace and dignity of Pennsylvania, and, 
under such circumstances, federal courts can properly 
protect federal agents by ordering their discharge 
from state custody. Cases in which the facts were 
not in dispute and in which the federal agent was 
ordered discharged from the custody of the state on 
the ground that the acts, though done within the 
territorial jurisdiction of a state, were clearly done 
within the scope of federal authority or duty, are 
In re Fair, 100 Fed. 149; In re Neagle, 135 U. S. 1; 
In re Waite, 81 Fed. 359; In re Lewis, 83 Fed. 159; 
U. S. vs. Fuellhart, 106 Fed. 911; In re Turner, 119 
Fed. 231; and Ohio vs. Thomas, 173 U. S. 276. 

Both the federal Circuit Court and Supreme 
Court found, however, that there was a dispute as 
to the facts; that the state contended that there was 
no necessity for using force, since Crowley had 
abandoned his flight and had offered to surrender. 
The question whether Crowley was a fleeing felon 
was open to dispute on the evidence. This question 
was the gist of the case and was for the state to pass 
upon. The assertion that Crowley was resisting 
arrest and in flight when shot became, then, a matter 
of defense, and a matter which federal courts are 
not competent to decide. Ex parte Crouch, 112 U. S. 
178. 



—82- 

Comparing Drury's case with that of Neagle 
(In re Neagle, 135 U. S. 1), we find that in the latter 
there was no dispute as to the facts and the federal 
court exercised its undoubted power to take peti- 
tioners from the custody of state officers in advance 
of trial in the state courts. It is therefore a dis- 
cretionary power in the Circuit Court. 

3. As to the third question: 

Crowley had been guilty of the crime of larceny 
committed on the Allegheny Arsenal property. He 
'could have been indicted and prosecuted in the 
District Court of the United States under Section 
5439 or Section 5391, Revised Statutes, or under the 
local law. It was the duty of Drury and Dowd to 
arrest Crowley and deliver him into the custody of 
the state authorities for prosecution. In the dis- 
charge of this duty they had ample authority to pur- 
sue Crowley into the territory of Pennsylvania, since, 
as to the making of arrests the jurisdiction of the 
United States is coextensive with its boundaries. 
And they had authority to exercise whatever force 
was necessary to stop the fleeing felon, even to the 
kilHng of. the fugitive if he persisted in his flight 
and it was reasonably believed that he could not be 
captured otherwise than by wounding or killing. 

When federal officers or agents are in the proper 
exercise of such authority the state cannot assume 
to judge their acts and it is proper for the federal 
courts to order the discharge of any such federal 
officer or agent from the custody of the state. But 
where a federal officer or agent exceeds his authority 
he is on a plane with the ordinary citizen and is 
amenable to state jurisdiction if his acts constitute 
an offense cognizable by that jurisdiction. This 
amenability extends to persons in the military service 
of the United States and the 59th Article of War is 
a distinct recognition of this fact by Congress. 



-83- 

Such criminal jurisdiction has always been exercised 
by the state. Coleman vs. Tennessee, 97 U. S. 509. 
It is not always possible to determine, in advance 
of the establishment of the facts by a jury, whether 
the authority was, in fact, exceeded. If there be 
probable cause to believe that the authority was ex- 
ceeded and that as a result thereof an offense has 
been committed against the laws of the state, the 
federal courts will remand the petitioner to the state 
authorities for trial. The case may still be reviewed 
by the federal courts after trial and in the light of 
the evidence produced at the trial. 

As has been stated, there was a dispute as to 
the necessity for the employment of the force actually 
used by Drury and Dowd. There was evidence 
tending to show that Crowley was shot after halting 
and offering to surrender. Therefore there was 
probable cause to believe that an offense, cognizable 
by the state of Pennsylvania, had been committed. 
The order of the United States District Court 
discharging the writ of habeas corpus and remand- 
ing Drury and Dowd to the custody of the authori- 
ties of Allegheny County was affirmed by the United 
States Court. 

Sees. 161, 753, 761, 5391, 5439, Rev. Stat. 

59th Article of War. 

Coleman vs. Tennessee, 97 U. S. 509. 

Ex parte Crouch, 112 U. S. 178. 

Ex parte Royall, 117 U. S. 241. 

In re Loney, 134 U. S. 372. 

In re Neagle, 135 U. S. 1. 

Whitten vs. Tomlinson, 160 U. S. 231. 

Baker vs. Grice, 169 U. S. 284. 

Ohio vs. Thomas, 183 U. S. 276. 

In re Waite, 81 Fed. 359. 

In re Lewis, 83 Fed. 159. 

Campbell vs. Thayer, 88 Fed. 102. 



-M ■ 

in re Fair, 100 Fed. 149. 

U. S. vs. Fuellhart, 106 Fed. 911. 

In re Turner, 119 Fed. 221. 

Sec. 694, A. R. 1908. 

Sees. 739, 740, 764, 666, 771, A. R. 1901. 



GRAFTON vs. UNITED STATES 



Supreme Court of the United States, 1907 
206 U. S. 333 



Prepared by Captain Paul B. Malone, 27th Infantry 



STATEMENT OF THE CASE 

Private Homer E. Grafton, Company G, 12th 
Infantry, a regularly detailed member of the guard, 
was duly posted as a sentinel for duty from 2 p.m. 
to 4 p.m., July 24, 1904, at Buena Vista Landing, 
Guimaras, P. I., his duty requiring him to guard 
certain stores and other property of the United 
States. According to his testimony, given before 
the general court-martial which subsequently tried 
him, Grafton, while on post, noticed what ap- 
peared to be suspicious movements on the part 
of natives adjacent to his post and reported his 
observations to the corporal of the guard. Shortly 
after making his report Grafton saw two natives 
approaching along his post. As they approached, 
according to testimony, one of them drew a knife or 
a bolo from his breast and concealed it behind his 
forearm. When within twenty-five or thirty feet 
from him the natives rushed upon Grafton. The 
latter thereupon fired two shots from the magazine 
of his rifle, the successive shots separated from each 
other by an interval of about five seconds. Both 
shots took eflfect. The first killed Florentino Castro, 
who fell about four or five paces from Grafton, 
the knife carried by Castro falling about midway 
between them. The second shot killed Felix Villa- 
nuevo as the latter attempted to escape. 

85 



-86— 

The case was immediately investigated by the 
mihtary authorities and charges were preferred 
against Grafton for manslaughter in violation of the 
62d Article of War. 

Charge:— Violation of the 62 Article of War. 

Specification 1:— In that Private Homer E. Graf- 
ton, Company G, 12th Infantry, being a sentry on 
post, did unlawfully, wilfully and feloniously kill 
Florentino Castro, a Filipino, by shooting him with 
a United States magazine rifle, caliber .30. 

This at Buena Vista Landing, Guimaras, P. I., 
July 24, 1904. 

Specification 2: — In that Private Homer E. Graf- 
ton, Company G, 12th Infantry, being a sentry on 
post, did unlawfully, wilfully and feloniously kill 
Fehx Villanueva, a Filipino, by shooting him with a 
United States magazine rifle, cahber .30. 

This at Buena Vista Landing, Guimaras, P. I., 
July 24, 1904. 

It was shown in the testimony that General Carter, 
commanding the department, ordered no trial by 
court-martial until the case had been offered for trial 
to the Court of First Instance, but the latter court 
failed to assume jurisdiction over the case. Grafton 
was therefore regularly tried by general court- 
martial under the foregoing charge and specifications 
August 16, 1904, was acquitted the same day, and 
the proceedings, finding and acquittal were approved 
by the reviewing authority August 25, 1904, and 
Grafton was released from confinement and restored 
to duty. 

Subsequently, the civil authorities at Iloilo, 
being dissatisfied with the result of the trial, charged 
Grafton with assassination in killing Felix Villa- 
nueva, the second native shot, and demanded that 
he should be delivered by the military authorities for 
trial. 

Grafton appeared before the Court of First In- 



—87— 

stance in obedience to this demand, demurred to the 
indictment and denied the jurisdiction of the court 
upon the grounds, among many others- 
la) Because the act constituting the offense 
was done by a soldier of the United States in per- 
formance of his duty under the laws of the United 
States. 

(6) Because he was entitled to his constitutional 
privilege of trial by jury. 

(c) Because he could not legally be brought to 
trial by any court, other than a military tribunal, 
except on an indictment found and presented by a 
grand jury. 

The demurrer and indictment were overruled. 

Grafton then pleaded specially in bar of trial 
the record of his previous trial and acquittal of the 
same offense by a general court-martial, which plea 
was likewise overruled. 

He then pleaded not guilty. The court there- 
upon, proceeded to the trial, convicted him of homi- 
cide, and sentenced him to "imprisonment in such 
prison as the law directs for the term of twelve 
years and one day, and to pay the cost of the prose- 
cution and to suffer all the other accessories of said 
sentence." 

From the finding and sentence of the Court of 
First Instance Grafton appealed to the Supreme 
Court of the Philippines assigning error on the part 
of the Court of the First Instance in overruling his 
demurrer and plea in bar of trial and in the finding 
of guilty on the merits of the case. 

This appeal was argued in the Supreme Court of 
the Philippines 10 August, 1905, re-argued 25 January, 
1906, and a decision affirming the sentence of the 
lower court was rendered by a divided court on April 
13, 1906, three Filipino judges and one American 
judge deciding against Grafton and three American 
judges for him. 



The decision of the Supreme Court of the Philip- 
pines with citations on which the decision is based 
may be summarized as follows: 

1. The acquittal by court-martial was no bar to 
the civil prosecution. 

Ex parte Mason, 105 U. S. 696, 699. 

Steiner's Case, 6 Op. 413, in which it was held by 
the Attorney General that Steiner's trial by the 
courts of Texas for killing an officer was no bar to 
his subsequent trial by general court- martial for the 
same offense. The case of Captain Howe, 6 Op. 506, 
in which it was held that trial for manslaughter in 
the Supreme Court of Florida was not a bar to trial 
by a general court-martial for cruel conduct predi- 
cated upon the same facts. 

Citing: — 

Moore vs. the people of the state of Illinois, 14 

How. 20. 
Fox vs. State of Ohio, 5 How. 434. 
United States vs. Marigold, 9 How. 569. 
Negro Ann Hammond vs. the State, 14 Md. 135. 
The Case of Lieut. Maney, 61 Fed. Rep. 140. 
Wilkes vs. Dinsman, 7 How. 89. 
United States vs. Clark, 31 Fed. Rep. 710. 
Coleman vs. Tennessee, 96 U. S. 509. 
United States vs. Cashiel, Fed. Cs. 14744. 
Digest Opinions J. A. Gen. pages 92, 38, 48. 
The Court of First Instance had jurisdiction. * * 
* * * There is no doubt of the plenary power of 
Congress anywhere in a territory. 

United States vs. Cornell, 2 Mason 60. 
People vs. Godfrey, 17 Johns. 225. 
Commonwealth vs. Young, Brightly Pa. 302, 

7 Op. 571. 
Fort Leavenworth R. R. Co. vs. Lowe, 114 U. 

S. 525. 



—89— 

U. S. VS. Stahl, 1 Woolw. 192. 

U. S. vs. McBratney, 104 U. S. 621. 

Ex parte Crov^ Dog, 109 U. S. 556. 

U. S. vs. Kagama, 118 U. S. 375. 

In re Wilson, 140 U. S. 575. 

Murphey vs. Ramsey, 124 U. S. 15. 

Mormon Church vs. U. S., 136 U. S. 1. 

R. S. sees. 1851, 1868, 1895, 1910, 1925, 5339, 7 

Op. 561. 
Kepner vs. U. S., 195 U. S. 114-119, etc. 

3. Grafton v^as not entitled to be indicted by a 
grand jury or tried by a petit jury. 

Hurtado vs. California, 110 U. S. 516. 

Maxwell vs. Dow, 176 U. S. 581, 604. 

Hawaii vs. Mankichi, 190 U. S. 197. 

Dorr vs. U. S. 195 U. S. 138, 149, in which it 
was held that the "Constitution does not 
without legislation and of its own force car- 
ry such right (right of trial by jury) to terri- 
tory so situated" (referring especially to the 
Philippine Islands. 

In re Ross, 140 U. S. 453. See Sees. 4083, 
4084, R. S. 

Cook vs. U. S., 138 U. S. 157, 181. 

4. Grafton was not in the performance of his 
military duty and is not justifiable. 

"This was not the case of an escaping felon. * * 

Drury vs. Lewis, 200 U. S. 1, 8, etc. 

"The law of self defense does not justify one 
in following up his adversary after the im- 
mediate danger has ceased and then kilhng 
him. Such a law would make every man 
his own avenger. 

Oregon vs. Conally, 3 Oreg. 69-72. 

Beard vs. U. S., 158 U. S. 550. 

Allen vs. U. S., 150 U. S. 551. 

Rowe vs. U. S., 164 U. S. 546, 557. 

Allen vs. U. S., 150 U. S. 551, 561. 

"The act was deliberate here, because Grafton 



—go- 
knew or ought to have known under the circumstances 
that he need not shoot again. If he had time to load, 
he had sufficient time to pause and reflect. The dis- 
senting opinion concedes that this is clear now. 
Practically as well as legally, it was just as clear to 
a trained soldier held to a high degree of self con- 
trol and responsibility as well as alertness. Indeed, 
he was bound to a higher degree of care than an 
ordinarily reasonable and prudent man, and this kill- 
ing-, by any one, was unnecessary if not wanton." 

The above opinion was delivered by Mr. Henry 
M. Hoyt, Solicitor General. 

Grafton appealed from the opinion of the Su- 
preme Court of the Philippines to the Supreme Court 
of the United States on the following assignments of 
error: 

1. The court erred in holding that the plaintiff 
in error had not been twice put in jeopardy of pun- 
ishment for the same offense. 

2. The court erred in holding that the plaintiff 
in error, though an enlisted man of the Army of the 
United States and being at the time of the alleged 
offense in the Philippine Islands by virtue of miH- 
tary orders, could be tried by the civil courts of the 
Phihppine Islands without a jury, notwithstanding 
the guarantees provided by Section 2, Article 3 of 
the Constitution of the United States of America, 
and Articles 5 and 6 of the Amendments thereto. 

3. The court erred in holding that the civil 
courts of the Philippine Islands have jurisdiction to 
try a soldier of the United States for an act done in 
the performance of a military duty imposed under 
the Constitution and laws of the United States. 

4. The court erred in holding that the act of the 
plaintiff in error, committed without malice and in 
the honest and reasonable belief that he was per- 
forming his duty, constituted an infraction of Article 
404 of the Penal Code of the Philippine Islands, and 
the crime of homicide. 



—91- * 

The principal argument of counsel for Grafton 
was as follows: 

That the condition of double jeopardy rests on 
both the Federal Constitution and the Philippine 
Penal Act; that no person can be twice placed in jeo- 
pardy for the same offense by courts of the same so- 
vereignty; that the trial, therefore, by general court- 
martial for manslaughter in killing Felix Villanueva 
bars trial by the Court of First Instance of the Phil- 
ippine Islands for murder or assassination in killing 
the same individual. 

In support of the first assignment of error 
counsel for Grafton quoted the following authorities: 

Ex parte Lange, 18 Wallace 205. 

5th Amendment to the Constitution. 

Sec. 5, Act of Congress, July 1, 1902, extend- 
ing the principle of the 5th Amendment 
to the Philippine Islands. 

Bishop on Criminal Law, Vol. 1, Sec. 979. 

Kepner vs. U. S., 195 U. S. 100. 

The Abbotsford, 92 U. S. 440. 

U. S. vs. Gilbert, 2d Sumner 39. 

Coleman vs. Tennessee, 97 U. S. 509. 

People vs. Minor, 144 111. 308. 

State vs. Bowen, 45 Minn. 145. 

State vs. Lange, 96 Tenn. 668, 

U. S. vs. Colley, No. 1303, Supreme Court 
of the Philippines. 

Commonwealth vs. Roby, 12 Pick. (Mass.) 496. 

Wilkes vs. Dinsman, 7 How. 123. 

Fox vs. Ohio, 5 How. 410. 

Baron vs. Mayor, 7 Peters 243. 

Moore vs. People of III, 14 How. 13. 

U. S. vs. Cashiel, 25 Fed. Cases 318. 

Sec. 8, Article 1, Constitution United States. 

Sec. 1342, R. S. 

Ex parte Milligan, 71 U. S. 123. 

Ex parte Davison, 21 Fed. Rep. 620. 

Ex parte Reed, 100 U. S. 13. 

In re McVey, 23 Fed. Rep. 878. 

Carter vs. Roberts, 177 U. S. 496. 

Carter vs. McClaughry, 183 U. S. 365, etc. 



—92— 

In support of the 2d assignment of error, coun- 
sel for Grafton quoted the following authorities: 

Article 3, Sec. 2 of the Constitution. 

Article 5 and 6 of the Amendments to the 
Constitution. 

Article 1, Sec. 8, and Article 4, Sec. 3, of the 
Constitution. 

Sec. 1342, R. S. , and argued that the case of 
Dorr vs. U. S., 195 U. S. 138, did not 
apply to a soldier of the United States 
ordered to the Philippine Islands with- 
out his consent. 

Downes vs. Bidwell, 182 U. S. 244. 

In support of the 3d assignment of error, counsel 
for Grafton quoted the following authorities: 
In re Fair, 100 Fed. Rep. 155. 
Lewis's Case, 83 Fed. Rep. 159. 
Tenn. vs. Davis, 100 U. S. 257. 
In re Neagle, 135 U; S. 1. 
In re Grimley, 137 U. S. 147. 
U. S. vs. Clark, 31 Fed. Rep. 710. 
In re Waite, 81 Fed. Rep. 359. 
Reynolds vs. U. S., 98 U. S. 145 
Good vs. Martin, 95 U. S. 90. 
Canter's Case, 2 Pet. 552. 
McAllister vs. U. S., 141 U. S. 174. 
Act of Congress, July 1, 1902. 

In support of the 4th assignment of error, coun- 
sel for Grafton quoted the following authorities: 

De La Rama vs. De La Rama, 301 U. S. 203. 
Justice Harlan in Beard vs. U. S., 158 U. S. 

564. 
Martin vs. State, 90 Ala. 602. 
State vs. Patterson, 45 Vt. 308. 
Karr vs. State, 46 Am. State Reports, 17 Ala. 
Allen vs. U. S., 150 U. S. 560. 
N. 0. & N. E. R. R. Co. vs. Jones, 142 U.S. 

23. 



—98— 

The 'points of law to he decided were then as fol- 
lows: 

1. Had Grafton been twice placed in jeopardy 
of punishment for the same offense? 

2. Had he, a soldier of the United States Army^ 
a right to trial by jury while serving in the Philip- 
pines if tried by a civil court? 

3. Was Grafton in the performance of a federal 
duty, and if so, had the courts of the PhiHppine 
Islands jurisdiction in the case? 

4. Assuming that the courts of the Philippine 
Islands had jurisdiction to try the accused, did the 
act of the accused constitute an infraction of Article 
404 of the Penal Code of the Philippine Islands? 

OPINION OF THE COURT 

The case was argued before the Supreme Court 
of the United States in the October term of 1906, and 
Mr. Justice Harlan delivered the opinion of the court 
May 27. 1907. 

After narrating the history of the case, the 
court says: 

' 'The principal contention of the accused is that 
his acquittal by the court-martial forbade his being 
again tried in the civil court for the same offense. 
He bases his contention in part upon that clause of 
the 5th Amendment of the Constitution, providing, 
'Nor shall any person be subject for the same offense 
to be twice put in jeopardy of life or limb'; and, in 
part, upon the Act of Congress of July 1, 1902, pro- 
viding temporarily for the administration of the af- 
fairs of civil government in the Philippine Islands, 
and which act declared that no person for the same 
offense shall twice be put in jeopardy of punish- 
ment.^ That the prohibition of double jeopardy is 
applicable to all criminal prosecutions in the Philip- 
pines was settled upon full consideration in the recent 
case of Kepner vs. United States, 195 U. S. 100, 124, 

1 32 Stat. 691. 



-94- 

i26, 129, i30, in which it was held that by force of 
the above act of Congress such prohibition was car- 
ried to the Philippines and became the law of those 
islands." 

The principle of double jeopardy applying to the 
Philippines, and therefore to Grafton's case, it be- 
came necessary to inquire whether Grafton had once 
been placed in jeopardy of punishment by his trial 
by general court martial. Upon this point the court 
speaks as follows: 

"We assume as indisputable, on principle and 
authority, that before a person can be said to have 
been put in jeopardy of life or limb the court in which 
he was acquitted or convicted must have had juris- 
diction to try him for the offense charged. It is 
alike indisputable that if a court martial has jurisdic- 
tion to try an officer or soldier for a crime, its judgment 
will be accorded the finality and conclusiveness as to 
the issues involved which attend the judgments of a 
civil court in a case of which it may legally take cog- 
nizance. ' ' ^ 

***** "It thus appears to be settled 
that the civil tribunals cannot disregard the judg- 
ments of a general court-martial against an accused 
officer or soldier if such court had jurisdiction to try 
the offense set forth in the charge and specifications; 
this, notwithstanding the civil court, if it had first 
taken hold of the case, might have tried the accused 
for the same offense or even one of higher grade 
arising out of the same facts. 

"We are now to inquire whether the court-mar- 
tial in the Philippines had jurisdiction to try Grafton 
for the offense charged against him. It is unneces- 
sary to enter upon an extended discussion of that 
question; for it is entirely clear that the court-mar- 
tial had jurisdiction to try the accused upon the 
charges preferred against him. The 62d Article of 
War, in express words, confers upon a general, or a 

2 Ex parte Reed, 100 U. S. 13, 23. 
Ex parte Mason, 105 U.S. 696, 699. 
Carter vs. Roberts, 177 U. S. 496, 498. 
Carter vs. McClaughry, 183 U. S. 365, 380. 



regimental, garrison, or field officer's court-martial, 
according to the nature and degree of the offense, 
jurisdiction to try 'all crimes' not capital, committed 
in time of peace by an officer or soldier of the army. 
The crimes referred to in that article manifestly em- 
brace those not capital, committed by officers or sol- 
diers of the Army in violation of pubhc law as en- 
forced by the civil power. No crimes committed by 
officers or soldiers of the army are excepted by the 
above article from the jurisdiction thus conferred up- 
on courts-martial, except those that are capital in 
their nature. While, however, the jurisdiction of 
general courts-martial extends to all crimes, not cap- 
ital, committed against public law by an officer or 
soldier of the army within the limits of the territory 
in which he is serving, this jurisdiction is not exclus- 
ive, but only concurrent with that of the civil courts. 
Of such offenses courts-martial may take cognizance 
under the 62d Article of War, and, if they first ac- 
quire jurisdiction, their judgments cannot be disre- 
garded by the civil courts for mere error or for any 
reason not affecting the jurisdiction of the military 
court." 

From the above it is clear that the trial of Graf- 
ton by the general court-martial placed him in jeop- 
ardy of punishment within the meaning of the 5th 
Amendment to the Constitution and of the Act of 
Congress of July 1, 1902, extending the principle of 
double jeopardy to the Philippine Islands. Under 
these circumstances, did his subsequent trial by the 
Court of First Instance place him in jeopardy of pun- 
ishment a second time for the same offense? 

Upon this point the court continued as follows: 

"We are next to inquire whether having been 
acquitted by a court-martial of the crime of homicide 
as defined by the Penal Code of the Philippines, 
could Grafton be subjected thereafter to trial for the 
same offense in a civil tribunal deriving its authority, 
as did the court-martial, from the same government, 
namely, that of the United States? 

' 'That he will be punished for the identical offense 
of which he has been acquitted, if the judgment of 



the civil court now before us, be affirmed, is beyond 
question, because as appears from the record, the 
civil court found him guilty and sentenced him to 
imprisonment specifically for 'an infraction of Article 
404 of said Penal Code and of the crime of homicide.' 

"It was said by the trial judge that the offense 
charged against Grafton in the civil court was 'assas- 
sination' which offense, he said, was punishable under 
section 403 of the Philippines Penal Code by death, 
and of which crime the military court could not, 
under the Articles of War, have taken cognizance; 
whereas, the offense for which he was tried by the 
court-martial was only homicide as defined by section 
404 of the Penal Code. But if not guilty of homicide 
as defined in the latter section of the Penal Code— and 
such was the finding of the court-martial — he could 
not for the same acts and under the same evidence, 
be guilty of assassination as defined in the former 
section of the Code. Looking at the matter in 
another way, the above suggestion by the trial judge 
could only mean that simply because, speaking gen- 
erally, the civil court has jurisdiction to try an officer 
or soldier of the Army for the crime of assassination, 
it may yet render a judgment by which he could be 
subjected to punishment for an offense included in 
the offense of assassination, although of such lesser 
offense he had been previously acquitted by another 
court of competent jurisdiction. This view is wholly 
inadmissible. * * * * 

* * * "The offense, homicide or manslaughter, 
charged against Grafton was the unlawful killing of 
a person named. The facts which attended that 
killing would show the degree of such offense, whether 
assassination of which the civil court might have 
taken cognizance if it acquired jurisdicton before the 
military court acted, or homicide of which the mili- 
tary court could take cognizance if it acted before 
the civil court did. If tried by the military court 
for homicide as defined by the Penal Code, and 
acquitted on that charge, the guarantee of exemption 
from being twice put in jeopardy of punishment for 
the same offense would be of no value to the accused, 
if on a trial for assassination, arising out of the 
same acts, he could be again punished for the identi- 



—97— 

cal offense of which he had been previously acquitted. 

"In Chitty's Criminal Law, vol. 1, pp. 452, 455, 
462, the author says: 'It is not in all cases neces- 
sary that the two charges should be precisely the 
same in point of degree, for it is sufficient, if an 
acquittal of the one would show that the defendant 
could not have been guilty of the other. Thus a 
general acquittal of murder is a discharge upon an 
indictment for manslaughter upon the same person, 
because the latter charge was included in the former, 
and if it had so appeared on the trial the defendant 
might have been convicted of the inferior ofl'ense; 
and on the other hand, an acquittal of manslaughter 
will preclude a future prosecution for murder, for if 
he were innocent of the modified crime he could not 
be guilty of the same fact, with the addition of mal- 
ice and design. ' 

* * * "It must, then, be taken on the present 
record that an affirmance of the judgment of the 
civil court will subject the accused to punishment for 
the same acts, constituting the same offense as that 
of which he had been previously acquitted by a mili- 
tary court having complete jurisdiction to try and pun- 
ish him for such offense. It is attempted to meet this 
view by the suggestion that Grafton committed two 
distinct offenses — one against military law and disci- 
pline, the other against the civil law which may pre- 
scribe the punishment for crimes against organized so- 
ciety by whomsoever those crimes are committed — and 
that a trial for either offense, whatever its results, 
whether acquittal or conviction and even if the first 
trial was in a court of competent jurisdiction, is no bar 
to a trial in another court of the same government for 
the other offense. We cannot assent to this view. 
It is, we think, inconsistent with the principle al- 
ready announced, that a general court-martial has, 
under existing statutes, in time of peace, jurisdiction 
to try an officer or soldier of the Army for any offense, 
not capital, which the civil law declares to be a crime 
against the public. The express prohibition of dou- 
ble jeopardy for the same offense means that where- 
ever such prohibition is applicable, either by opera- 
tion of the Constitution or by action of Congress, no 
person shall be twice put in jeopardy of life or limb 



—98- 

for the same offense. Consequently a civil court 
proceeding under the authority of the United States, 
cannot withhold from an officer or soldier of the 
Army the full benefit of that guarantee, after he has 
been once tried in a military court of competent jur- 
isdiction. 

" * * * If, therefore, a person be tried for 
an offense in a tribunal deriving its jurisdiction and 
authority from the United States and is acquitted or 
convicted, he cannot again be tried for the same of- 
fense in another tribunal deriving its jurisdiction and 
authority from the United States. 



"A different interpretation finds no sanction in 
the Articles of War; for the 102d Article of War * 
* * declares that 'no person'— referring, we take it, 
to persons in the Army ^ 'shall be tried a second time 
for the same offense.' But we rest our 3ecision of 
this question on the broad ground that the same acts 
constituting a crime against the United States can- 
not, after the acquittal or conviction of the accused 
in a court of competent jurisdiction, be made the 
basis of a second trial of the accused for that crime 
in the same or in another court, civil or military, of 
the same government. 



"In support of the view that the judgment of a 
military court against an officer or soldier of the 
Army for acts constituting a crime against both the 
civil law and the military organization, is no bar to a 
second trial in the civil courts for the same acts, we 
are referred to Fox vs. Ohio, 5 How. 410, 435; United 
States vs. Marigold, 9 How. 560, and Moore vs. State 
of Illinois, 14 How. 13, 19, 20. 

" * * * It is clear that the above cases are 
not in point here * * * The same act, as held in 
Moore's case, may constitute two offenses, one against 
the United States and the other against a State. 
But these things cannot be predicated of the relations 
between the United States and the Philippines. 

1 2 Stat. 369. 



-99- 

The government of a state does not derive its powers 
from the United States, while the government of 
the Phihppines owes its existence wholly to the 
United States, and its judicial tribunals exert all 
their powers by authority of the United States. 
The jurisdiction and authority of the United States 
over that Territory and its inhabitants, for all legiti- 
mate purposes of government, is paramount. So 
that the cases holding that the same acts committed 
in a State of the Union may constitute an offense a- 
gainst the United States and also a distinct offense 
against the State, do not apply here, where the two 
tribunals that tried the accused exert all their powers 
under and by authority of the same Government— 
that of the United States. 



"The judgment must be reversed, and the case 
remanded with directions to the Supreme Court of 
the Philippines to order the complaint or informa- 
tion in the Court of First Instance to be dismissed 
and the plaintiff discharged from custody. 

"It is so ordered." 



CONCLUSIONS 

The foregoing decision considered only the ques- 
tion of double jeopardy as applied to the Philippines 
and left undecided the questions involved in the 2d, 
3d, and 4th assignments of error. It is probable, 
however, that courts will follow the decision of the 
United States in Dorr vs. United States, 195 U. S. 
149, in which it was held with reference to a civilian, 
who claimed right of trial by jury in the Philippines, 
that "the Constitution does not without legislation 
and of its own force carry such right to te.rritory so 
situated." 

A similar principle is enunciated In re Ross, 
140 U. S. 453, in which it was held that an American 
seaman could be punished for murder by the consular 
court of Japan without trial by jury. In other 



—1 do- 
words, the Constitution does not necessarily follow 
the flag, and persons subject to military law will, in 
all probability, be forced to submit to trial without 
■jury by the civil courts of the Philippines unless 
they are protected from the danger by statute. The 
i-emedy is to be found, not in anxiously awaiting an 
interpretation of the law in an adjudicated case, or 
even in securing by statute the right of trial by jury, 
which might prove as dangerous as the present law, 
but rather in re-writing the Articles of War so as to 
give to military courts outside the territorial limits 
of the United States exclusive jurisdiction of all 
crimes committed by persons subject to military law. 

The decision does not deny, but rather re-afRrms 
the concurrent jurisdiction of state and military 
courts over crimes not capital committed in time of 
peace by persons subject to military law; such per- 
sons remain amenable to trial by both the state and 
military courts for the same offense, but they cannot 
be tried a second time for the same offense by courts 
deriving their jurisdiction from the same sovereignty. 
Thus, a trial by a court-martial bars subsequent trial 
for the same offense by a court of the United States, 
or of a territory, organized or unorganized, and vice 
versa, and all decisions to the contrary are over- 
ruled. 

One of the most important features of the de- 
cision is that with reference to the meaning of the 
word "crimes" as used in the 62d Article of War. 
For more than half a century this word has been 
held to be limited by the phrase "to the prejudice of 
good order and military discipline," and, predicated 
upon this meaning of the word, we have a long Hne 
of erroneous decisions by department and other 
commanders. 

Thus paragraph 148, Digest of the Opinions of 
the Judge-Advocates General, reads as follows: 



—101— 

"The word ' crimes ' in this Article, distinguished 
as it is from ' neglects ' and ' disorders,' means mili- 
tary offenses of a more serious character than these, 
including such as are also civil crimes— as homicide, 
etc." 

Paragraph 158 reads as follows: 

•'Whether acts committed against civilians are 
offenses within this Article is a question to be deter- 
mined by the circumstances of each case, and in re- 
gard to which no rule can be laid down. If the 
offense be committed on a military reservation, or 
other premises occupied by the army, or in its 
neighborhood so as to be — so to speak — in the con- 
structive presence of the army; or if committed by 
an officer or soldier while on duty, particularly if the 
injury is done to a member of the community whom 
the offender is specially required to protect; or if 
committed in the presence of other soldiers, or while 
the offender is in uniform; or if the offender use his 
military position or that of another for the purpose 
of intimidation or other unlawful influence or object 
—the offense will in general be properly regarded as 
an act prejudicial to good order and military dis- 
cipline and cognizable by a court-martial under this 
Article." * * * 

Paragraph 160 enumerates offenses not cogniz- 
able under this Article, and the principles enunciated 
in the above paragraphs are found promulgated in 
the following cases: 

In G. 0. 59, Department of Washington, 1866, 
General Canby observed in regard to the theft of pri- 
vate property, that it *' is not a military crime per se, 
but only as it affects, and to the extent that it does 
affect, the good order and discipline of the command 
in which it was committed." 

To the • same effect G. 0. 8, Department of 
Columbia, 1872. 

In a case in G. C. M. 0. 58, Department of the 
Platte, 1872, where the accused was charged with 
and convicted of "theft, to the prejudice of good 



—102— 

order and military discipline in stealing property of a 
civilian," General Ord, in disapproving the pro- 
ceedings, adds: "The specification does not allege 
a mihtary offense." The crime is "one against the 
civil law and not against any law or regulation gov- 
erning the mihtary." 

In G. 0. 85, Department of the Cumberland, 
1867, General Thomas disapproved the proceedings 
of general courts-martial in two cases in which the 
accused were charged with assault and battery with 
intent to kill, rob and rape, committed upon civilians, 
on the grounds that the offenses were of a purely 
civil character and such as called for the action of a 
"civil tribunal." 

In a case of this class, promulgated in G. C. M. 0. 
17, Department of the Columbia, in which the pro- 
ceedings and sentence were approved by the depart- 
ment commander, General Miles, a question was 
subsequently raised as to whether the court had 
jurisdiction of the offense— robbery by soldiers of 
civilians on- the road between Portland, Oregon, and 
Vancouver Barracks. 

The number of cases might be greatly extended, 
but the above seems sufficient to illustrate the opinion 
heretofore prevailing in regard to the application of 
the 62d Article of War. That all these cases were 
clearly within the jurisdiction of courts-martial is set 
forth in the most positive manner in the decision of 
the Supreme Court in the Grafton case. All de- 
cisions of the department and other commanders to 
the contrary are overruled, if we may use such a 
term, and the law is stated in the following un- 
mistakable terms: 

"The crimes referred to in that article (62d) 
manifestly embrace those not capital, committed by 
officers or soldiers of the army in violation of public 
law as enforced by the civil power. No crimes com- 



—103— 

mitted by officers or soldiers of the army are excepted 
by the above article from the jurisdiction thus con- 
ferred, except those that are capital in their nature." 

The point is here dwelt upon at some length 
because post commanders continue to accept the 
citations in Winthrop and other authorities on mili- 
tary law as a correct interpretation of the 62d Ar- 
ticle of War at the present time, whereas by the 
above decision all crimes committed by any person 
subject to military law at any time or place, are 
triable by courts-martial unless outlawed by the 
statute of limitations. 

CASES CITED BY THE COURT, AND OTHER REFERENCES 

Ex parte Reed, 100 U. S. 13, 231. 

Ex parte Mason, 105 U. S. 696, 699. 

Carter vs. Roberts, 177 U. S. 496, 498. 

Carter vs. McClaughry, 103 U. S. 365, 380. 

Fox vs. Ohio, 5 How. 410, 435. 

U. S. vs. Marigold, 9 How. 560. • 

Moore vs. State of Illinois, 14 How. 13, 19, 20. 

Chitty's Criminal Law, Vol. I, p. 452, 455, 462. 

Bishop's Criminal Law, 7th Ed., Sec. 1050. 

Commonwealth vs. Roby, 12 Pick. 503. 

Stark Crim. PL, 3d. Ed., 322. 

32 Stat. 691. 

2 Stat. 369. 



In Re TURNER 
SHERIFF vs. TURNER et al. 



Circuit and District Court 

S. D. Iowa, 1902 

119 Federal Reporter 231 



Prepared by Major Charles Gerhardt, 10th Injantry 



STATEMENT OF THE CASE 

In April, 1900, Congress passed a statute for the 
erection of a military post at Des Moines, Iowa. 
The site selected was about five miles south of Des 
Moines and about two miles from North river. 

Major R. B. Turner, U. S. A., was placed in 
charge of the work, under the direction and orders 
of the War Department. As a part of the post, a 
sewer was being constructed which was to discharge 
into North river. 

The owner of a tract of land a short distance 
below where the sewer would enter the river filed a 
bill in equity in the District Court of Warren County, 
Iowa, to restrain Major Turner and his assistant, 
Herrick, from laying the sewer pipe, alleging that 
the discharge of the sewage would so pollute the 
waters and bed of North river as to make his lands 
unfit for pasture, and by reason thereof his lands 
would be depreciated in value; and contended that it 
was taking private property for public use without 
making compensation therefor. 

The state court issued an injunction enjoining 
the defendants from constructing any part of the 
sewer in Warren county, and from having the mouth 

104 



-105- 

thereof at North river. The defendants, and par- 
ticularly defendant Turner, disregarded the writ and 
refused to obey it. Thereupon he was arrested by 
the sheriff to answer as for contempt. 

Before the contempt proceedings were heard, 
the United States attorney appeared and filed a 
petition to remove the case to the District Court on 
the ground of a "federal question" being involved. 
The removal was granted and the record filed in the 
District Court. The complainant filed a motion to 
remand, and the United States attorney moved to 
vacate the injunction. Shortly before the contempt 
proceedings were to be heard, a writ of habeas cor- 
pus was ordered to issue, directing the sheriff to 
show by what authority he detained Major Turner. 
The sheriff pleaded that he held him by virtue of the 
proceedings and orders in the contempt case. 

Two actions were heard together: 

1st. A suit in equity removed from a state 
court and heard on a motion to remand and a motion 
by defendant to dissolve an injunction. 

2d. A proceeding by habeas corpus by the de- 
fendant in the first suit for his discharge from arrest 
and detention on an order of the state court for vio- 
lation of injunction. 

The two actions were so closely related that they 
were stated and decided in the one opinion. 

POINTS OF LAW 

1. Has a state court the jurisdiction in a pro- 
ceeding brought for the sole purpose of enjoining an 
officer of the United States Army from doing a work 
which he is commanded to perform by his superior 
officer in the execution of an act of Congress? 

Held:— That a state court is wholly without juris- 
diction. 

2. Can such officer be enjoined by a state court, 



—106— 

even though he is committing a wrong upon com- 
plainant's property, provided such act is for and on 
behalf of the government? 

Held:— That a state court being without juris- 
diction, its writ of injunction is void. 

3. Is disobedience of a writ of injunction by a 
state court, being without jurisdiction, a contempt, 
subjecting to arrest and detention? 

Held:— Disobedience is not a contempt; arrest 
aiTid detention are without authority. 

4. Is an officer of the United States Army, in 
the discharge of his duty, acting in obedience to 
commands by the Secretary of War, who in turn is 
executing an act of Congress, subject to arrest on a 
warrant or order of a state court? 

Held: — Such arrest is wholly illegal. 

5. May the arrest, under the authority of a 
state, of a federal army officer in the performance of 
a command by a superior officer which he dare not 
disobey be taken cognizance of by a federal court on 
habeas corpus proceedings? 

Held:— That it presents a matter of urgency, and 
it is within the discretion of the federal courts to at 
once take cognizance of the case on habeas corpus 
proceedings, rather than allow the case to be carried 
through two or three years of time. 

OPINION OF THE COURT 

The opinion first recited the history of the case 
practically in the language (but not in the order) 
given above. 

The opinion further stated: 

"The act of Congress provides, first, that the 
site of the post shall be approved by the Secretary of 
War. It next provides that the army post shall be 
of such character and capacity as the Secretary of 
War shall direct and approve. * * * 



—107— 

' 'In addition to the foregoing, it also appears that 
thedefendantTurnerisanofficer of the United States 
Army with the rank of major, and that as Major Turner, 
under the directions and orders of the War Depart- 
ment, he was, in the line of military duty, erecting 
said post, and as part thereof was constructing said 
sewer." 

Some minor and some technical questions have 
been waived, and the substantial inquiries which, by 
both the circuit and district courts of the United 
States, must now be decided are, has a state court 
the jurisdiction in a proceeding brought for the sole 
purpose of enjoining an officer of the United States 
Army from doing a work which he is commanded to 
perform by his superior officer in the execution of an 
act of Congress? And can such officer be enjoined 
by a state court, even though he is committing a 
wrong upon complainant's property, provided such 
act is for and on behalf of the government? 

"If the court had jurisdiction, then the power to 
issue the writ existed, and whether it was issued up- 
on a sufficient or insufficient showing by the land 
owner is not a question for this court. But the 
question, and the only question for this court is, did 
the state court have jurisdiction to proceed further 
when it became known that Mr. Turner was Major 
Turner, and that Major Turner was doing the things 
complained of as an army officer in obedience to a 
command by the Secretary of War, pursuant to an act 
of Congress? 

"If there is doubt about the matter, neither of 
these courts should hold that the state court was 
without power or jurisdiction. 

' 'But having no doubt whatever that the state 
court was wholly without jurisdiction, it is my duty 
to so order. 

"And the state court being without jurisdiction, 
its writ of injunction was void, and the disobedience 
thereof was not a contempt, and his arrest and de- 
tention was without authority. And I deem it my 



—108— 

duty to present, although briefly, my reasons for so 
holding. 

"And first as to the habeas corpus case in the dis- 
trict court. This writ cannot be used as a writ of 
error or appeal to review the action of another court. 
But it can and should be issued and made effective 
when another court has acted without jurisdiction to 
act. Even then, at times and in cases like this, it is 
discretionary. It would be proper to allow the case 
to take its course through the Iowa courts, the Su- 
preme Court of the state included, and then, if the 
party arrested is adjudged against, to present the 
case by writ of error to the Supreme Court of the 
United States. But the arrest under authority of a 
state, of a federal officer, and that officer one of the 
federal army in the performance of a command by a 
superior officer which he dare not disobey, presents a 
matter of urgency, and it is within the discretion of 
the federal courts to at once take cognizance of the 
case, and act at once, rather than allow the case to 
be carried through three courts, taking two or three 
years of time. Ex parte Royall, 117 U. S. 241, 6 Sup. 
Ct. 734, 29 L. Ed. 868; Campbell v. Waite, 31 CCA. 
403, 88 Fed. 102. 

"Therefore it follows that the habeas corpus pro- 
ceedings are the proper remedy in a case like the one 
at bar. The question here involved has many times 
been decided in all its material phases, and, in my 
judgment, is* not open to serious question. In re 
Waite (D. C) 81 Fed. 379, decided by Judge Shiras, 
in the Northern District of Iowa in 1897. State v. 
Waite, 70 N. W. 596. 

"And after a careful reading and study of the 
opinion of Judge Shiras, I find that there is little re- 
maining to be said, because I fully endorse it as be- 
ing full and complete, and one that cannot be suc- 
cessfully answered. All the then existing authorities 
are presented and I need only cite that opinion as 
being expressive of my views. For if I were to at- 
tempt to elaborate upon the question I would only 
engage in repetition which cannot possibly serve a 
useful purpose. * * * * Shiras opinion affirmed 
31 C. C A. 403, 88. Fed. 102 ... . Cited with ap- 



—109— 

proval, Ohio v. Thomas, 173 U. S. 276-284, 19 Sup. 
Ct. 453, 43 L. Ed. 699 ... . and the Supreme Court 
has said that it is the law of the nation .... And 
why should this not be so? It is begging the whole 
question, and it is idle to say that any and all fed- 
eral officers are amenable and subject to the laws, 
civil and criminal, of Iowa when within the state. 
Of course they are. The Secretary of War, the Gen- 
eral of the armies, the Chief Justice, and even the 
President, perhaps, are subject to all the laws of 
Iowa, when in Iowa. No one disputes this. But 
that is not the question. Can any one of those offi- 
cers, or any subordinate, in the discharge of his du- 
ties as a government officer, be subject to the laws of 
the state while in the state? That is the question 
and the only question. The state is not greater than 
the nation, but, on the contrary, the state is but a 
part, and a small part of the nation. And, if I am 
wrong, then instead of the President, and the Sec- 
retary of War, and the General of the army being in 
control, we will have army commands given by and 
through the courts, and an officer like Major Turner 
cashiered and dismissed from the service if he refus- 
es to obey the commands from his superiors, and if 
he does obey them, thrown into a county jail for con- 
tempt of court. 

' 'A much stronger showing for the exercise of 
jurisdiction by a state court was presented in the 
case of In re Neagle, 135 U. S. 1, 10 Sup. Ct. 758, 34 
L. Ed. 55 ... . But he was taken from the control 
and custody of the California courts by a United 
States court, and on habeas corpus proceedings dis- 
charged .... 

"So that, both by reason and the highest author- 
ity of the land, I hold that an officer of the United 
States Army, in the discharge of his duty, acting in 
obedience to commands by the Secretary of War, 
who in turn is executing an act of Congress, is not 
subject to arrest on a warrant or order of a state 
court, and that such arrest is wholly illegal, and it 
follows that Major Turner is discharged from custo- 
dy and detention. 

"Next, as to the injunction case in the circuit 
court .... That there is a federal question involved 



—110— 

cannot be in doubt .... But that cannot be tried 
on injunction issued by a state court .... The case 
was properly removed to this court by order of the 
state court .... The case will stand for such fur- 
ther action as counsel may be advised to take. If 
complainant will suffer a legal wrong, he will have 
a legal remedy .... But, if his wrong shall prove 
to be real , our government will see to it, either that 
he has a remedy in the proper court, or that his 
wrongs are righted by being given the amplest re- 
dress. At all events he cannot control the army by 
writ of injunction, as great and powerful and bene* 
ficient as that writ is," 

CASES CITED 

(a) Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 

23 L. E. 868. 
Ohio V. Thomas, 178 U. S. 276-284, 19 Sup. Ct. 

453, 43 L. Ed. 699. 
In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 

L. Ed. 55. 

(b) Campbell v. Waite, 88 Fed. 102, 31 C. C. A. 

403. 
In re Waite, 81 Fed. 359. 

(c) State V. Waite, 70 N. W. 596. 



(I) In Re PETITION COUNTESS of BUENA VISTA 

and 

DR. DON GUSTAVO QALLET DUPLESSIS 

(Magoon==194) 



(2) O'REILLY de CAMARA v. BROOKE 

135 Federal Reporter 384, District Courts. D. New York, 

1905 
142 Federal Reporter 858, District Court S. D. New York, 

1906 



(3) O'REILLY de CAMARA v. BROOKE 
209 U. S. 45, Supreme Court of the United States, 1908 



Prepared by Captain Robert Alexander, 19th Infantry 



The foregoing entitled case first came before the 
military authorities of the United States upon the 
following state of facts: 

In 1728 the Crown of Spain, in consideration of 
a money payment made to it, invested the ancestor 
of the Countess of Buena Vista with the office of 
High Sheriff or Alguacil Mayor of Havana, Cuba, 
with a right to the fees and emoluments pertaining 
to that office, and a corresponding obligation on the 
holder of the office to perform the duties thereof. 

The office itself, by the patent of cession, was 

declared perpetual, and was to pass by descent in 

the direct male hne of the original grantee of the 

Crown. It did so pass until, the male line failing, an 

act of grace on the part of the Crown permitted the 

daughter of the last male representative to succeed, 

each transfer of occupancy being approved by the 

Crown under royal letters patent. 
Ill 



—112- 

Upon a change of government in Spain, and the 
adoption of a Constitution by that country in 1875, 
the existence of all such perpetual, inheritable offices 
was declared inconsistent with the Constitution, and 
their abolishment provided for upon payment to the 
occupants of an indemnity. Pending such payment 
the holders were to enjoy the offices and their fees, 
and as payment had not been made, the representa- 
of the original grantee was found in 1898 still admin- 
ist;ering the office. 

In 1895 a one-half interest in the office and its 
fees and emoluments was sequestrated by the courts, 
sold to pay a debt of the then incumbent, and pur- 
chased by the second party in interest who appears 
in the petition now under consideration. 

Upon the withdrawal of the Spanish authorities, 
as a result of the War of 1898, the succeeding Amer- 
ican authorities refused to allow the then holders of 
the office to exercise any of its functions, or receive 
any of the emoluments pertaining thereto. Upon 
this state of facts the dispossessed claimants pre- 
sented to the military authorities exercising our rule 
in Cuba a petition, praying reinstatement in the 
office, or compensation for its sequestration. This 
petition being denied by the Governor of Havana and 
the Governor General of Cuba, the matter was car- 
ried to the Secretary of War and thus gave oppor- 
tunity for the opinion presented in the text by the 
Law Officer of the Department. 

It appears that the office of High Sheriff of 
Havana carried with it the right and duty to sit as a 
member of the Ayuntamiento of the city, to serve all 
process of the courts, to supervise the slaughter, 
delivery, and disposal of all meats offered for sale in 
in the city, to provide for the disposal of the refuse of 
the slaughter house, and to inspect the weights and 
measures. 



—113— 

For the performance of all these duties the pos- 
session of the office carried with it a right to certain 
fees, fixed by law from time to time for each class of 
services. 

Being dispossessed of the office, and as a corol- 
lary, of the fees pertaining thereto, the claimants 
based their application for a restitution of the office, 
or compensation for their loss, upon certain conten- 
tions thus presented: 

1. That said office was property. 

2. That said property belonged to them on April 
11, 1899, the date of ratification (proclamation) of 
the Treaty of Peace between Spain and the United 
States. 

3. That the deprivation of said office by the 
military authorities of the United States contravened 
the provisions of Article 8 of said Treaty. (Magoon, 
196). 

The views of the War Department, as set forth 
in the approved opinion of its law officer, upon 
these points of complaint are found in extenso in the 
volume of Magoon's Reports (164). It is unnecessary 
to go further into them here than to say that the 
War Department held: 

1. That the office, being political in its nature, 
could (as an officer of the courts) only depend upon 
the tenure of the Crown of Spain over the Island of 
Cuba for its continued existence. 

2. That in regard to the duties connected with 
the supply of meat, and inspection of weights and 
measures, the Crown of Spain in the creation, or sale, 
of said office, assumed to grant to a subject the exer- 
cise of the police power of the State. 

3. That by the successful outcome of the inva- 
sion of Cuba, the Crown of Spain became dispossessed 
of all its political rights in and over the territory of 
said Island; its agencies of government fell with the 
sovereignty upon which they were based; and all the 



—114- 

political relations between the people of Cuba and 
their former sovereign were ipso facto dissolved. 

4. That such change of political relationship 
having taken place quite independently of the Treaty, 
although confirmed therebj^ (Havana occupied 1 Jan- 
uary, 1899; Treaty proclaimed, 11 April, 1899) the of- 
fice of the High Sheriff of Havana, being one of the 
executive agencies through which the Crown of Spain 
had exercised its now defunct political sovereignty 
became at once expropriated and ceased to exist. 

Mr. Magoon says further (201): 

"The Crown of Spain may no longer exercise 
prerogative rights in Cuba, and its instrument, the 
High Sheriff of Havana, has no greater rights than 
are possessed by his principal." 

It was further held that while the incumbent 
would doubtless have a property right to the fees and 
emoluments of the office so long as he held incum- 
bency, he could have no inalienable right to the of- 
fice itself. (Magoon 203) 

The petitioners were therefore informed that, in 
the view of the War Department, they were entitled 
to neither the office nor the compensation for its loss; 
and this decision, approved by the Secretary, was du- 
ly communicated to them under date of December 
24th 1900. 

O'Reilly de Camara v. Brooke 
135 Fed. 384 

This decision of the War Department being un- 
satisfactory to the petitioners, recourse was had to 
the Courts of the United States, a bill in equity be- 
ing filed against General Brooke, the military gover- 
nor of Cuba who caused the expropriation of the of- 
fice to be carried into effect. This bill, presented in 
the District Court of the United States for the South- 
ern District of New York, was demurred to by the 
defendant on the grounds set forth in the approved 



—US- 
decision of the War Department quoted above. 
This demurrer being argued the court ruled (Holt, 
Dist. Judge) that— "plaintiff's franchise was private 
property within the protection of the Treaty, and of 
which she could not be lawfully deprived without 
compensation; that the fact that such franchise was 
a monopoly, which would be void under the laws of 
the United States or by the common law, was im- 
material, it being valid and protected by law of 
Spain," and further: 

"If an officer of the United States takes the pro- 
perty of a private person for public use without com- 
pensation, he is liable in tort for the trespass, al- 
though the government may also be liable on an im- 
plied contract." 

This being the ruling of the court on the demur- 
rer, the case went to trial on its merits, and the evi- 
de nc3 establishing the state of facts as set forth above, 
the Court was called upon for decision. It may 
be observed that the defendant presented be- 
sides the political considerations set forth in the de- 
murrer, and which had been disallowed, two specific 
grounds of defense. 

1. That the abolition of the plaintiff's franchise 
to slaughter cattle in Havana was justified as an act 
under the police power, in the interests of the public 
health. 

2. That the United States Government having 
ratified the act of defendant the plaintiff has no fur- 
ther claim against him. 

Upon the first defense thus summarized the 
court held (142 Fed. 858) that while the abatement 
of a nuisance was justified, such nuisance being 
shown to exist, such abatement could not go so far 
as to abolish the plaintiff's franchise, already held by 
the court to be property. 

Upon the second defense however (ratification of 
act of the defendant) the court held that under the 
Piatt Amendment, executed between the United 



—lie- 
States and Cuba, the acts of the military authorities, 
when ratified by the home government, were exempt 
from personal responsibility. 

It is rather difficult to appreciate how an agree- 
ment between the United States and Cuba could be 
held to affect the rights of the subjects of Spain, 
they holding such rights, if at all, under the Treaty 
of Paris, and Spain being no party to the Piatt 
Amendment or the general treaty with Cuba. The 
court so held, however, saying further: 

"In my opinion the plaintiff has a just claim for 
damages for the destruction of her property against 
the United States * * * or against Cuba * * * 
or against both governments; but she has no longer 
any right of action remaining against this defend- 
ant." 

O'Reilly de Camara vs. Brooke, 209 U. S. 45. 

The cause having been appealed from the de- 
cision of the District Court, quoted above, to the 
Supreme Court of the United States, came up for 
decision at the October term, 1907, and is finally 
disposed of by the court. 

After considering the question of abatement of 
nuisance, subsequent ratification, and the other 
questions upon which the District Court based its 
conclusion, the Supreme Court reached a decision 
upon ground seemingly very much more solid than 
anything advanced by the District Court. The court 
says (p. 53): 

"But we do not dwell longer upon the ratifica- 
tion of what was done during the military occupation 
of Cuba, or consider the question whether the ratifi- 
cation was needed, because we agree with the opinion 
of the Secretary of War that the plaintiff had no 
property that survived the extinction of the sov- 
ereignty of Spain. * * * No ground is disclosed 
in the bill for treating the right to slaughter cattle 
as having become a hereditament independent of its 



—117— 

source. But of course the right to the office, or to 
be paid for it, did not exist as against the United 
States, and, unless it did, the plaintiff's case is at an 
end." 

CASES CITED by Mr. Magoon 



STATE 

State vs. Dos, R. M. Chart. (Ga.), 397, 400. 

Spring vs. Russell, 7 Greenl. 273. 

Charles River Bridge vs. Warren Bridge, 7 

Pick. 459. 
Lansing vs. Smith, 4 Wend. 9. 
Callender vs. Marsh, 1 Pick. 410. 
Coates vs. Mayor of New York, 7 Cow. 585. 
People vs. Livingstone, 6 Wend. 526. 

FEDERAL 

Boyd vs. Alabama, 94 U. S. 645. 
Beer Co. vs. Massachusetts, 97 U. S. 25-28. 
Fertilizing Co. vs. Hyde Park, 97 U. S. 659. 
Butchers' Union vs. Crescent City &c. Co. Ill 

U. S. 746. 
Stone vs. Mississippi, 101 U. S. 814. 
Bank of Columbia vs. Oakley, S4 jWheat. 244- 

245. 
Hawkins vs. Barney, 5 Pet. 466-467. 
Fletcher vs. Peck, 6 Cranch. 113. 
U. S. vs. Arredondo, 6 Pet. 691. 
U. S. vs. Sibbald, 10 Pet. 313. 

BY DISTRICT COURT OF UNITED STATES 
ENGLISH 

Secy. State &c. vs. Kamachee Boye Sahaba, 

13 Moore (P. C.) 22. 
SuUivan vs. Spencer, Ir. R. 6 C. L. 173. 
Mostyn vs. Fabrigas, 1 Cowp. 161. 
Phillip vs. Eyre, L. R. 6 Q. B. 1. 



—US- 
FEDERAL 

Little VS. Barreme, 2 Cranch. 170. 

Mitchell vs. Harmony, 13 How. 115. 

Bates vs. Clark, 95 U. S. 204. 

Virginia Coupon Cases, 114 U. S. 509. 

Grisar vs. McDowell, 6 Wall. 393. 

U. S. vs. Lee, 106 U. S. 196. 

Belknap vs. Schild, 161 U. S. 10. 

Slaughter House Cases, 16 Wall. 36. 

Butchers &c. Co. vs. Crescent City &c. Co., Ill 

U. S. 746. 
U. S. vs. Great Falls Mfg. Co., 122 U. S. 645. 
Hill vs. U. S., 149 U. S. 593. 
Langford vs. U. S., 101 U. S. 593. 
Strother vs. Lucas, 12 Pet. 410. 
Moore vs. Steinbach, 127 U. S. 70. 

The citations given by the Supreme Court of the 
United States are merely upon technical points, not 
affecting the merits of the case as decided by them, 
and therefore not of general applicability. 



CARRINQTON v UNITED STATES 



Supreme Court of the United States, 1908 
208 U. S. 1 



Prepared by Captain Edgar A. Sirmyer, 8th U. S. 
Cavalry. 



STATEMENT OF THE CASE 



It appears that Carrington, while a Major of In- 
fantry of the United States Army, was in charge of 
a battahon of Philippine Scouts which had been de- 
signated to go to St. Louis, U. S. A., for duty during 
the Louisiana Purchase Exposition at that place in 
1904. 

In October of the preceding year, Major Car- 
rington wrote a letter to the executive secretary of 
the Philippine government suggesting that the mem- 
bers of his scout battalion construct a model adminis- 
tration building on the exposition grounds out of na- 
tive materials and stating that this could be done for 
about $3,000 gold. 

Both Governor Taft and the Exposition Board 
approving this project, the Civil Commission of the 
Philippine Islands in November passed a resolution 
authorizing the transfer "to the credit of Major F. 
deL. Carrington, 1st United States Infantry, com- 
manding the Provisional Battalion of Philippine Scouts 
to be transported to St. Louis in 1904 in connection 
with the Philippine Exhibit" the sum of $3,000, "to 
be used and accounted for by Major Carrington in 
the construction" of the building mentioned. 

119 



-120— 

It was further resolved that an additional a- 
mount of $500 be deposited to the credit of Major 
Carrington with which to pay some of the expenses 
of families of scouts allowed to accompany them to 
St. Louis, and further that, after certain details, the 
Civil Government might "designate Major Carring- 
ton as disbursing officer to receive the funds men- 
tioned." 

The resolution having been approved, Governor 
Taft wrote a letter addressed to Major Frank deL. 
Garrington, 1st U. S. Infantry, Commanding Pro- 
visional Battalion Philippine Scouts, saying: 

"You are hereby designated to withdraw, re- 
ceive, expend, and account for, the funds to be 
expended in the preparation and display of a Scout 
Exhibit at the Louisiana Purchase Exposition as set 
forth in the said resolution." 

Some time afterwards. Major Garrington was 
charged, as a disbursing officer of the Philippine 
government, with falsifying public documents and 
with appropriating to his own use a part of the $3,500 
above mentioned. 

He was duly convicted in the court of the first 
instance and, upon appeal to the Supreme Court of 
the Philippine Islands, the conviction was confirmed. 

He then brought the case before the Supreme 
Court of the United States by writ of error. 

"The complaint alleges that the said Major Gar- 
rington 'being then and there a public official of the 
United States civil government of the Phihppine 
Islands, to wit, a duly appointed and commissioned 
major of the First Infantry, United States Army, and 
the duly designated, qualified, and acting commander 
of the Provisional Battalion of the Philippine Scouts, 
and a duly appointed, qualified, and acting disbursing 
officer of public funds of the United States civil 
government of the Philippine Islands, appropriated 
on account of said Provisional Battalion and on 



—121— 

account of the Louisiana Purchase Exposition at 
St. Louis, * made a false voucher for the payment of 
770 pesos." 

In arguing the case, the counsel for the plaintiff 
in error said: 

First. — That Major Carrington was not at any time 
a public officer of the United States Civil government 
of the Philippine Islands, nor was he a duly appointed, 
qualified, and acting disbursing officer for public 
funds of that government, as stated in the charge. 

That he could not be such public officer under 
the laws of the United States. ' 

Second. ^That he was charged with official mis- 
conduct, "abuse of his office", and that this criminal 
charge can only be sustained when it is shown that 
(a) there was such an office; (b) that he was duly ap- 
pointed to that office; (c) that he qualified as such 
officer; (d) that he actually held that office under such 
appointment and qualification; (e) that the "abuse of 
his office" with which he was charged is an offense 
at the common law, the statute law, or the Philip- 
pine law. ^ 

T/i-irc?.— That while holding the office of major, 
United States Army, and on duty as such, he was not 
amenable to the courts or subject to the laws of the 
civil government of the Philippine Islands for any 
offense committed by him in connection with the per- 
formance of his duties as Major of Infantry. 

Fourth. — That as a citizen of the United States 
he was entitled to trial by jury. 

Fifth.— That his punishment was illegal because 
cruel and unusual. 

The Solicitor General for the United States 
claimed: 

First— That the said Major Carrington, upon 

1^2 Stat. 567; 1st Supp. Rev. Stat., ch. 124, p. 412. 
•' In re Bonner, 151 U. S. 259. 



—122— 

his own initiative and by resolution of the Phihppine 
Commission and the act of the Governor of the 
Philippine Islands, was designated to receive, ex- 
pend and account for a certain sum, and that he 
accepted that post and acted accordingly. He was 
thus an officer de facto and cannot escape liability 
by denying title. ^ 

Second. — He was an official within the meaning 
of Section 401 of the Philippine Penal Code. ^ 

Third. —That the provisions of Section 1222 
and par. 4, Section 1860, Revised Statutes, are in- 
applicable in that they apply to the United States 
and the organized territories and not to the Philip- 
pine Islands, acquired long after the enactment of 
those sections. 

Fourth. —That Carrington was not entitled to a 
trial by jury, since a soldier has no greater right in 
this respect than a civilian. In the United States he 
is amenable to trial in the civil courts for civil 
offenses, but if he is sent for duty to a state where 
the common law as to juries is not followed, he 
could not demand a presentment and trial under the 
Constitution. ^ 

POINTS OF LAW DECIDED BY THE SUPREME COURT 

First.— Does a single transitory act or trans- 
action call an office into being? 

Second. — Does the fact that an officer, holding a 
commission in the United States Army, accepts the 
duty of spending and accounting for a small fund of 
the Philippine government, make him a civil officer 

1 Hussy vs. Smith, 99 U. S. 20; Buck vs. City of Eureka, 
109 California 504; Allen vs. McNeel, 1 Mills (S. C.) 229; Digga 
vs. State, 49 Alabama 311; People vs. Church, 1 How. Pr. 366. 
State vs. Long, 76 N. Car. 254; Wendell vs. Fleming, 8 Gray 
613. 

*See 2 Viada 659, as to the wide extension and latitude of 
the law. 

3Dorr vs. U. S., 195 U. S. 138; In re Ross, 140 U. S. 453. 



—123— 

amenable to trial in the civil courts for falsifying his 
accounts? 

Third. — Can an officer, holding a commission in 
the United States Army, make himself a civil officer 
in view of the act of Congress prohibiting it? 

Fourth. —Does the fact that an officer of the 
United States Army, entrusted with the expenditure 
of funds of the Philippine government, who signs his 
accounts as ''Disbursing Officer" make him a civil 
officer? 

OPINION OF THE SUPREME COURT 

Mr. Justice Holmes delivered the opinion of the 
court. 

In the review of the case, he gives the main 
points and the complaint as has already been given 
in the first part of this summary and adds that Major 
Carrington, in signing the false document, added 
after his name, "Maj. 1st Infantry, D. 0.," the last 
letters meaning, it may be presumed, Disbursing 
Officer. 

In the opinion given Mr. Justice Holmes says: 
"At this time the plaintiff in error was an officer 
of the Army on the active list, detached to command 
a battalion of Philippine Scouts, admitted to be a part 
of the military establishment of the United States. 
Leaving names on one side, what happened was that 
he received $3,500 from civil sources, to be used by 
him in connection with his military command, in the 
performance of duties incident to that command. 
On the face of it the proposition is extravagant that 
the receipt of a small sum to be spent and done with 
forthwith in this way made him an officer of the civil 
government, notwithstanding the source from which 
it came, or the fact that he sent his accounts to the 
same quarter. An office commonly requires some- 
thing more permanent than a single transitory act or 
transaction to call it into being. The letter of Gov- 
ernor Taft which designated Major Carrington to re- 



—124— 

ceive the funds says nothing about appointing him a 
civil or any kind of officer, nor did he qualify as one 
in any way. He was addressed by Governor Taft 
and he acted in his military capacity and under his 
responsibility. He has been held to that responsi- 
bility by a court-martial. The only color for an ad- 
ditional liability is in the words quoted from the res- 
olution of the Civil Commission, authorizing the Civil 
Governor to designate Major Carrington as disburs- 
ing officer, words which the Governor wisely did not 
adopt, and in the fact that the plaintiff in error gave 
himself that name. It is unnecessary to inquire 
v\fhether he could have made himself a civil officer if 
he had tried, in view of the act of Congress absolute- 
ly prohibiting it. ' 

"No one dreamed that he was attempting it, and 
if he could have succeeded at the expense of his 
place in the Army under Rev. Stat., Sec, 1223, no 
one supposed that he had done so, but he continued 
in his mihtary command undisturbed. 

"We think it entirely plain that the acceptance 
of the duty of spending and accounting for this small 
fund did not amount to holding a civil office within 
the tatutes of the United States. We see no suffic- 
ient reason to beheve that the Philippine Penal Code, 
Art. 300, purports or attempts to reach a case like 
that of the plaintiff in error. The provision in Art. 
401, that for this purpose every one shall be consid- 
ered a pubhc officer who, * * * j^y popular elec- 
tion or appointment by proper authority, takes part 
in the exercise of public functions, does not help 
Article 300. That also seems to contemplate an of- 
fice having some degree of permanence. But how- 
ever that may be, the plaintiff in error was perform- 
ing no public function of the civil government of the 
Philippines; he was performing military functions to 
which the civil government contributed a little rnon- 
ey. As a soldier he was not an official of the Philip- 
pines, but of the United States. If Philippine legis- 
lation attempted to add to the immediate responsibil- 
ities of the soldier in the course and performance of 
his duty under the paramount authority from which 

1 Act of March 3, 1883. c. 134; 22 Stat. 567. 



—125— 

that legislation derives its rights to be, we should 
have to inquire whether we could gather from any 
act of Congress the intention to permit what might 
become the instrument of dangerous attacks upon its 
power. It is a wholly different question from that 
where a soldier not in the performance of his duty 
commits an ordinary crime. But we do not under- 
stand the Penal Code to have the suggested scope. 
Judgment reversed. 

LIST OF CASES CITED 



U. S. SUPREME COURT 

In re Bonner, 151 U. S. 259. 
Hussey vs. Smith, 99 U. S. 20. 
Dorr vs. U.S., 195 U. S. 138. 
In re Ross, 140 U. S. 453. 
Grafton vs. U. S., 206 U. S. 333. 

OTHER CASES AND REFERENCES 

Buck VS. City of Eureka, 109 California 504. 

Allen VS. McNeel, 1 Mills (S. C.) 229. 

Diggs vs. State, 49 Alabama 311. 

People vs. Church, 1 How. Pr. 366. 

State vs. Long, 76 N. Car. 254. 

Wendell vs. Fleming, 8 Gray 613. 

2 Viada 695. 

PhiHppine Penal Code, Sec. 300. 

Philippine Penal Code, Sec. 401. 

Sec. 1222, Rev. Stat. U.S.; par. 4, Sec. 1860, 

Rev. Stat. U. S. 
Act of March 3, 1883, c. 134. 22 Stat. 567. 



BLAKE V. UNITED STATES 



Supreme Court of the United States, 1880 
103 U. S. 227 



Prepared by Captain Houston V. Evans, 8th Infantry 



STATEMENT OF THE CASE 

This case was heard at the October term, 1880, 
of the United States Supreme Court, having reached 
that court through appeal from the Court of Claims, 
where it had been instituted by Blake to recover the 
amount claimed to be due him as salary as post 
chaplain in the army from April 28, 1869, to May 14, 
1878. 

In the trial of the case before the Court of 
Claims, it was found that while stationed at Camp 
McDowell, Arizona, Chaplain Blake addressed a let- 
ter to the Secretary of War, in which he claimed 
that he had been subjected to unjust treatment by 
various officers for a number of years, requested a 
full investigation of the facts, and concluded his 
letter as follows: "but if this cannot be done, then I 
wish to tender to the Honorable the Secretary of War 
my resignation as a chaplain of the army, and to lay 
the facts which I have been accumulating with the 
greatest care before the church and country at 
large." 

It seems that the chaplain started his letter 
through military channels and that it was duly for- 
warded through the various headquarters to the Sec- 
retary of War. 

The letter was written December 24, 1868. 
After it came into the hands of the post commander 

126 



—127— 

it was suggested to him that the Chaplain was in 
such a mental condition that he was not responsible 
for his act in writing the letter. The post commander 
held the letter until December 31, 1868, and then 
forwarded it with the recommendation that the resig- 
nation be accepted, saying in the course of his 
indorsement, that "the tenor of this and other com- 
munications forwarded will, no doubt, convince the 
department commander of his uselessness in the 
position he holds." 

The letter being laid before the President, he 
accepted the resignation to take effect March 17, 
1869. Each of the commanding officers through 
whose office the letter had passed recommended that 
the resignation be accepted. 

On March 28, 1869, Blake telegraphed the Dele- 
gate in Congress from Arizona to the effect that he 
had not intended to resign and that if his letter was 
understood at Washington to be a resignation, to 
withdraw it at once. 

This letter was brought to the attention of the 
Secretary of War, but as the President had accepted 
the resignation to date March 17th, the Secretary 
stated that the resignation could not be recalled. 

When Blake, in the due course of time, received 
official notification of the acceptance of his resigna- 
tion, he wrote a letter to the Secretary of War, under 
date of April 27, 1869, in the course of which he said, 
among other things, 

"As I am not aware of having at any time re- 
signed my commission, and as I am now in a state of 
feeble health, caused by efficient services in the line 
of duty in 1863, 1864, and since, I beg that the favorable 
reconsideration of the President may be given to 
my case, and that I may be ordered before a re- 
tiring board for examination, and to duty if fit for 
it." 



—128- 

felake again complained in this letter of the 
wrong done him at Camp McDowell, Arizona. 

This letter being referred to the Adjutant Gen- 
eral of the Army, was returned with the paper on 
which the resignation had been accepted, and with 
the statement, "Chaplain Blake appears not to be of 
sane mind." 

No further attention seems to have been given 
the case at that time, and on July 7, 1870, the Presi- 
dent nominated "Alexander Gilmore, of New York, 
to be a post chaplain in the army, to date from July 
2, 1870, vice Blake, resigned." Gilmore's nomination 
was duly confirmed by the Senate and he was com- 
missioned as a post chaplain on the 14th of July, and 
continued thereafter to regularly receive his salary 
and to perform his duties as post chaplain. 

It was also shown that on December 24, 1868, 
and for sometime prior thereto Blake had been suf- 
fering from physical disease and mental prostration, 
and that in the light of subsequent events, "there 
can be no doubt that he was then insane;" that not 
until after the date of his letter of resignation did 
the symptoms of his mental disease develop to such 
an extent as necessarily to lead to the conclusion 
that he was mentally unsound; and that he was 
"totally unqualified for business" and "he was not 
of sound mind" at the date of his telegram to the 
Delegate in Congress from Arizona, March 28, 1869; 
also that his insanity continued until about the year 
1874. 

On September 28, 1878, the President issued the 
following order: 

"It appeared from the evidence, and from the 
reports of the Surgeon General of the Army and the 
superintendent of the government hospital for the 
insane, that Chaplain Blake was insane at the time 
he tendered his resignation, it is held that said res- 



—129— 

ignation was and is void, and the acceptance thereof 
is set aside. 

"Chaplain Blake will be ordered to duty, and paid 
from the date of the resignation of Post Chaplain 
Preston Nash, to wit, May 14, 1878, by which resig- 
nation a vacancy was created which has not been 
filled. The claim of Chaplain Blake for pay from the 
date of his resignation to May 14, 1878, during 
which time his successor held the office, discharged 
its duties, and received pay, is not decided, but is left 
for the decision of the courts, where it is understood 
to be now pending. 

"In accordance with this order, an order was 
issued from the Headquarters of the Army October 2, 
1878, setting aside the resignation and restoring 
Blake to the list of post chaplains, with his original 
date of rank and with pay from May 14, 1878, the 
date on which the vacancy occurred by reason of 
the resignation of Chaplain Nash, and ordering him 
to report in person to the commanding officer. De- 
partment of Arizona, for duty." 

Upon this showing, the Court of Claims dis- 
missed the petition, and appeal was taken to the 
Supreme Court. 

Blake's claim was based upon the ground that at 
the time of his letter to the Secretary of War, which 
was construed at the time as a resignation, he was 
mentally unsound and therefore irresponsible for his 
acts, and consequently that the letter could not be a 
resignation, was inoperative and did not have the 
effect to vacate the office. 

The court thought that if the appointment of Gil- 
more, with the advice and consent of the Senate, to 
the office held by Blake, operated, propria vigore, to 
discharge the latter from the service and to invest 
the former with the rights and privileges belonging 
to that office, it would not be necessary to inquire 
whether Blake was at the date of the letter of Dec- 
ember 24, 1868, in such condition of mind as to enable 



-130— 

him to perform, in a legal sense, the act of resigning 
his office; or, whether the acceptance of his resigna-' 
tion followed by the appointment of his successor,' 
by the President, by and with the advice and consent, 
of the Senate, was not, in view of the relations of 
the several departments of the government to each' 
other, conclusive, in this collateral proceeding, as to* 
the fact of a valid effectual resignation. 

Mr Justice Harlan delivered the opinion of the 
court, in which it was shown that from the organiza- 
tion of the government under the present constitu- 
tion to the commencement of the civil war, the 
power of the President, in the absence of statutory 
regulations, to dismiss from the service an officer of 
the army or navy, was not questioned in any ad- 
judged case, or by any department of the govern- 
ment. 

Reference was made to the case of Ex parte 
Hennan, (13 Pet. 259), which involved the authority 
of a district judge to remove a clerk and appoint 
some one in his place. 

In this case, the court among other things, said: 

" All offices, the tenure of which is not fixed by 
the Constitution or limited by law, must be held 
either during good behavior, or (which is the same 
thing in contemplation of law) during the life of the 
incumbent, or must be held at the will or discretion 
of some department of the government and subject 
to removal at pleasure. 

And if removable by pleasure, by whom is such 
removal to be made, the court asks. It is then 
stated, 'in the absence of all constitutional provision 
or statutory regulation, it would seem to be a sound 
and necessary rule to consider the power of removal 
as incident to the power of appointment.' " 

It is then shown that this power of removal from 
office had been a subject of much dispute and had 
given rise to much diversity of opinion in the early 



—131— 

history of the government, the point being whether 
the removal could be by the President alone, or must 
it be with the concurrence of the Senate, both con- 
stituting the appointing power. No one denied the 
power of the President and Senate jointly to remove 
in cases where tenure was not fixed by the Constitu- 
tion. It is stated that it was very early adopted, as 
a practical construction of the Constitution, that this 
power was vested in the President alone, and that 
such would appear to have been the legislative con- 
struction of the Constitution. 

In support, the following authorities were cited: 
1 Kent Com. 309; 

2 Story, Const. (4th ed.), sects. 1537-1540, and 

notes; 

2 Marshal, Life of Washington, 162; 

Sergeant, Const, Law, 372; 

Rawle, Const., c. 14. 

Reference is then made to the opinion of the 
Attorney General in President Tyler's Administra- 
tion in support of the power of the President to re- 
move officers of the army and navy from oflSce, 
without trial by courts-martial, in which he refers, 
in support of his view, to the "settled construction" 
of 1789. (3 Story, Com. Const. 397, sect. 1538). 
And it is shown that the same views were expressed 
by subsequent attorneys-general. (4 Opin. 1; 6 id. 4; 
8id. 233; 12 id. 424; 15 id. 421.) 

The Attorney General said in the Du Barry cafee 
(4 Opin. 612) that there was nothing in the Constitu- 
tion or any judicial decision to limit the President's 
power of removal to civil officers; and there was no 
foundation in the Constitution for any distinction in 
this regard between civil and mihtary officers. Lans- 
ing Case, (6 Opin. 4). 

The opinion of Attorney General Gushing is 
quoted in which that officer says, ' 'the power has 



. —132— 

been exercised in many cases with approbation, ex- 
press or implied, of the Senate, and without chal- 
lenge, by any legislative act of Congress. And it 
is expressly reserved in every commission of the 
officers, both of the navy and army." (8 Opin. 231.) 
This was the recognized power of the President, and 
the established practice in the Executive Department 
of the government up to the passage of the Act of 
July 17, 1862, c. 200 (12 Stat. 596), in which it is pro- 
vided among other things, that "the President of the 
United States be, and hereby is, authorized and re- 
quested to dismiss and discharge from the military 
service, either in the army, navy, marine corps, or 
volunteer service, any officer for any cause which, in 
his judgment, either renders such officer unsuitable 
for, or whose dismission would promote, the public 
service." 

In reference to this act, the Attorney General 
said (15 Opin. 421), and with much reason, the Su- 
preme Court adds, that so far as it gives authority to 
the President, it is simply declaratory of the long 
established law. It is probable that the force of the 
act is found in the word "requested" by which it was 
intended to re-enforce strongly this power in the 
hands of the President at a great crisis of the state. 

An act of Congress passed March 3, 1865, c. 79 
(13 Stat. 489) provided that any officer of the military 
or naval service, dismissed from the service by auth- 
ority of the President might, if he thought himself 
unjustly dismissed, make application in writing for 
a trial by court-martial; and that such trial would be 
granted aud the dismissal rendered void unless the 
court awarded dismissal or death. 

Congress passed an act July 17, 1866, c. 176 (14 
Stat. 92) , in the fifth section of which is found these 
words: 



—133— 

"And no officer in the military or naval service 
shall, in time of peace, be dismissed from the service, 
except upon and in pursuance of the sentence of a 
court-martial to that effect, or in commutation 
thereof." 

The Supreme Court thought that this provision 
might reasonably be construed in two ways:— 

First, by giving the words a literal interpreta- 
tion, it might be construed to mean, that although 
the tenure of office of army and navy officers is not 
fixed by the Constitution, they shall not in time of 
peace be dismissed from the service under any cir- 
cumstances, or for any cause, or by any authority 
whatever, except in pursuance of a sentence of a court- 
martial to that effect, or in commutation thereof. 

Second, in view of the connection in which the 
clause appears, following, as it does, one in the same 
section repealing provisions touching the dismissal 
of officers by the President alone, and to the assign- 
ments by him of the command of troops, without 
regard to the seniority of officers, it may be held to 
mean that, whereas under the act of July 17, 1862, 
as well as before its passage, the President alone 
was authorized to dismiss an army or navy officer 
from the service for any cause which, in his judg- 
ment, either rendered such officer unsuitable for, or 
whose dismissal would promote the public service, 
he alone shall not thereafter in time of peace exer- 
cise such power of dismissal except in pursuance of 
a court-martial sentence to that effect, or in commu- 
tion thereof. 

The court rendered the opinion that the latter 
was the true construction of the act. 

The court called attention, in its opinion, to the 
way in which that section of the act originated in the 
Senate and the supposed reasons for it, referring to 
the Congressional Globe, 39th Congress, pp. 3254, 
3405, 3575 and 3589. 



—134— 

The opinion states that it is supposed to have been 
suggested by the serious differences existing, or which 
were apprehended, between the Legislature and the 
executive branches of the government in reference to 
the enforcement, in the states lately in rebellion, of 
the reconstruction acts of Congress. 

Congress had faith in the senior officers of the 
army and believed that within the limits of the 
authority conferred by statute, they would carry out 
t,he policy of Congress, as indicated in the recon- 
struction acts, and suppress all attempts to treat 
them as unconstitutional and void, or to overthrow 
them by force. 

Congress did not seem to have so much confidence 
in the President's support of its policies. Hence 
this provision in the act of July 17, 1866, by way of 
preparation for the apprehended conflict between 
Congress and the President. 

In support of this view, the court calls attention 
to the second section of the act of March 2, 1867, c. 
170 (14 Stat. 486), establishing the headquarters of 
the army at Washington, requiring all orders and 
instructions relating to military operations issued by 
the President or Secretary of War to be issued 
through that officer, and, in case of his inability, 
through the next in rank, and declaring that the 
general of the army "shall not be removed, sus- 
pended, or relieved from command, or assigned to 
duty elsewhere than at said headquarters, except at 
his own request, without the previous approval of 
the Senate, and any orders or instructions relating 
to military operations issued contrary to the require- 
ments of this section shall be null and void; and 
any officer who shall issue orders or instructions con- 
trary to the provisions of this section shall be deemed 
guilty of a misdemeanor in office," etc. 

Comparing these two acts, and considering the 



—135— 

purpose which they were evidently intended to ac- 
complish, the court states its conclusions as follows: 

"Our conclusion is that there was no purpose, 
by the fifth section of the act of July 17, 1866, to 
withdraw from the President the power with the ad- 
vice and consent of the Senate, to supersede an 
officer in the military or naval service by the appoint- 
ment of some one in his place. 

"It is, in substance and effect, nothing more 
than a declaration that the power theretofore ex- 
ercised by the President, without the concurrence of 
the Senate, of summarily dismissing or discharging 
officers of the army and navy, whenever in his judg- 
ment the interest of the service required it to be 
done, shall not exist, or be exercised, in time of 
peace, exept in pursuance of the sentence of a court- 
martial, or in commutation thereof. 

"There was, as we think, no intention to deny 
or restrict the power of the President, by and with 
the advice and consent of the Senate, to displace 
them by the appointment of others in their places." 

It was, therefore, the opinion of the court, and it 
so decided, that the appointment of Gilmore, with 
the advice and consent of the Senate, to the office 
held by Blake, operated in law to supersede the 
latter, who thereby, in virtue of the new appoint- 
ment, ceased to be an officer in the army, at least 
from the date of the appointment of Gilmore, and 
this without reference to Blake's mental capacity to 
understand whether his letter of December 24, 1868, 
was a resignation or* not. 

The court also decided, in view of the fact that 
the President had reinstated Blake, that having 
ceased to be an officer in the army, he could not 
again become a post chaplain, except upon a new 
appointment, by and with the advice and consent of 
the Senate. 

Judgment affirmed. 



—136- 
LIST OF CASES CITED 

U. S. SUPREME COURT 

Ex parte Hennan, 13 Pet. 259. 
Mimmick vs. United States, 97 U. S. 426. 

ACTS OF CONGRESS 

July 17, 1862, c. 200 (12 Stat. 596). 
March 3, 1865, c. 79 (13 Stat. 489). 
July 13, 1866, c. 176 (14 Stat. 92). 
March 2, 1867, c. 170 (14 Stat. 486). 

OPINIONS OF THE ATTORNEYS GENERAL 

4 Opin. 1; 6 id. 4; 8 id. 233; 12 id. 424; 
15 id. 421; 4 id. 612 (Du Barry's Case); 
6 id. 4 (Lansing's Case); 8 id. 231. 

OTHER AUTHORITIES 

1 Kent Com. 309; 2 Story Const. (4th Ed.), 

sects. 1537-1540, and notes; 

2 Marshall, Life of Washington, 162; 
Sergeant, Const. Law, 872; 
Rawle, Const. 397, sect. 1538; 
Congressional Globe, 39th Congress, pp. 3254, 

3405, 3575, and 3589. 



RUNKLE V. UNITED STATES 



Supreme Court of the United States, 1886 



122 U. S. 543 

Prepared by Captain E. J. Williams, 5th Infantry' 



STATEMENT OF THE CASE 

Benjamin P. Runkle served as a captain of the 
13th Ohio Volunteer Infantry from April 22, 1861, 
until November 18, 186.1, at which time he became a 
major and served as such until he was mustered out 
August 18, 1862. 

On the following day he was mustered in as a 
colonel of the 45th Ohio Volunteer Infantry, and 
served as such until he was mustered out July 11, 
1864. 

He then held an appointment as a lieutenant- 
colonel of the Veteran Reserve Corps from August 
29, 1864, until October 5, 1866, on which latter date 
he was mustered out of that organization. 

On the day following his muster out from the Vet- 
eran Reserve Corps he accepted an appointment as a 
major of the 45th U. S. Infantry, and was placed on 
the retired list as a major on the 15th of December, 
1870. 

Major Runkle was placed on duty as a disbursing 
officer of the Bureau of Refugees, Freedmen, and 
Abandoned Lands, for the State of Kentucky on April 
11, 1867, and remained continuously on that duty, 
even after his retirement, until he was placed in 
arrest because of charges preferred on account of 
irregularities connected with his money accounts. 

137 



-138— 

On June 25, 1872, the War Department issued a 
Special Order, No. 146, convening a court-martial at 
Louisville, Kentucky, on the 5th of July, 1872, for 
the trial of a certain officer, and such other prisoners 
as might be brought before it. 

Major Runkle was arraigned before this court 
and tried on tv^o charges: 

1. "Violation of the Act of Congress approved 
March 2, 1863, c. 67, Sec. 1." 

, 2. ' 'Conduct unbecoming an officer and a gentle- 
man." 

There were thirteen specifications alleged under 
the 1st charge, and fourteen under the 2d charge. 
All of the specifications, with the exception of the 
1st and 5th under the 1st charge and the 5th and 14th 
under the 2d charge, alleged acts to have been com- 
mitted by the accused in 1871 and subsequent to his 
being placed on the retired list; and the specifications 
excepted above alleged acts to have been committed 
by the accused in 1870 and prior to his having been 
placed on the retired list. 

Major Runkle was found guilty on eighteen of 
the twenty-eight specifications, three of the specifi- 
cations on which he was found guilty alleging of- 
fenses committed prior to his retirement from the 
army. He was also found guilty on both charges 
and the sentence of the court was as follows: 

"To be cashiered; to pay the United States a fine 
of $7,500; and to be confined in such penitentiary as 
the President of the United States may direct, for 
the period of four years; and in the event of the non- 
payment of the fine at the expiration of four years, 
to be kept in confinement in the penitentiary until 
the fine be paid, the total term of imprisonment, 
however not to exceed eight years." 

The proceedings were regularly transmitted to 
the Secretary of War, who endorsed thereon the fol- 
lowing orders: 



—139— 

"The proceedings in the foregoing case of Major 
Benjamin P. Runkle, retired, United States Army, 
are approved, with the exception of the action of the 
court ***** 

"The findings and sentence are approved. 

"In view of the unanimous recommendation by 
the members of the court that the accused shall re- 
ceive executive clemency on account of his gallant 
services during the war, and of his former good 
character, and in consideration of evidence, by affi- 
davits presented to the War Department since his 
trial, showing that the accused is now, and was at 
the time when his offense was committed, suffering 
under great infirmity in consequence of wounds 
received in battle, and creditable representations 
having been made that he would be utterly unable 
to pay the fine imposed, the President is pleased to 
remit all of the sentence, except so much thereof as 
directs cashiering, which will be duly executed. 

Wm. W Belknap, 
Secretary of War." 

In accordance with the above. War Department 
General Order, No. 7, dated January 16, 1873, was 
published and announced that: 

"Major Benjamin P. Runkle, U. S. Army (re- 
tired), ceases to be an officer of the army from the 
date of this order." 

Major Runkle's name did not again appear on 
the Army Register until August 4, 1877, the date of 
his restoration to the army, the circumstances of 
which were as follows: — 

Upon application of Major Runkle, President R. 
B. Hayes issued the following Executive Order (only 
those parts of the order necessary to a complete un- 
derstanding of the case are quoted): 

"Executive Mansion, 

"Washington, August^, 1877. 

"Third. That subsequent to the date of said 
General Order, No. 7, to wit, on the 16th day of Jan- 



—140— 

uary, 1873, Major Runkle presented to the President 
a petition setting forth that the proceedings of said 
court had not been approved by the President of the 
United States, as required by law; that said convic- 
tion was unjust; that the record of said proceedings 
was not in form or substance sufficient in law to war- 
rant the issuing of said order, and asking the revo- 
cation and annulment of the same. 

" Fourth. That in pursuance of this petition, 
the record of the official action theretofore had in 
the premises was, by direction of the President, 
Ulysses S. Grant, referred to the Judge-Advocate 
General of the United States Army for review and 
report. 

"Fifth. That thereupon the Judge-Advocate 
General reviewed the case, and made his report 
thereon, in which it is reported and determined, 
among other things, that in the proceedings had up- 
on the trial of the case by said court, 'it is nowhere 
affirmatively established that he (Major Runkle) 
actually appropriated any money to his own use. ' 

"It also appears in said report that the con- 
viction of said Runkle upon charge one, as aforesaid, 
is sustained upon the opinion that sufficient proof of 
the crime of embezzlement on the part of the accused 
was disclosed by the evidence before the court. And 
with respect to charge two no reference to the same 
is made in said report, except to deny the sufficiency 
of the evidence in the case, for a conviction upon the 
fourteenth specification thereof; and it is also to be 
observed that the thirteen remaining specifications 
under this charge are identical with the thirteen 
specifications under charge one. 

' ' The Judge Advocate General further finds and 
determines in said report as follows, to wit: 'For 
alleged failures to pay, or to pay in full, ' on the part 
of sub-agents, ' I am of the opinion that the accused 
cannot justly be held hable. ' 

"Sixth. That no subsequent proceedings have 
been had with reference to said report, and that the 
said petition of the said Runkle now awaits further 
and final action thereon. 

"Whereupon, having caused the said record, 
together with said report, to be laid before me, and 



—141— 

having carefully considered the same, I am of the 
opinion that the said conviction is not sustained by 
the evidence in the case, and the same, together with 
the sentence of the court thereon, are hereby dis- 
approved; and it is directed that said Order No. 7, so 
far as it relates to said Runkle, be revoked. 

"R. B. Hayes." 

Major Runkle, then, on August 7, 1877, made 
claim to the Paymaster General for back pay for the 
entire time from January 16, 1873, which amount 
was, after going through the usual routine in such 
cases, paid to him. He continued to draw his pay as 
an officer on the retired list, and up to January 1, 
1884, had drawn $23,585.62, the amount of money 
accruing to him since the date of General Order No. 
7, signed by Secretary of War William W. Belknap. 

On the 14th of September, 1882, Major Runkle 
filed with the Second Auditor of the Treasury De- 
partment a claim for longevity pay as an officer in 
the United States Army, "retired from active ser- 
vice," basing his claim on the decision of the Supreme 
Court, in the case of United States vs. Tyler. ^ 

This claim of Major Runkle was referred to the 
Court of Claims by the Secretary of the Treasury on 
the 27th of June, 1883, requesting an opinion upon 
the following questions: 

' ' 1st. Was the court-martial that tried Benjamin 
P. Runkle duly and regularly organized, and had it 
jurisdiction of the person of said Runkle, and of the 
charges upon which he was tried? 

1" We are of the opinion that retired officers are in the 
military service of the government, and that the increased 
pay of ten per cent for each five years' service applies to the 
years so passed in the service as well as before. 

"We also hold that the words 'current yearly pay,' in 
Section 1262, require that, when the increased pay for any 
period of five years is to commence, the ten per cent must be 
counted on the regular salary added to its increase by any 
previous periods of five years; so that the original salary of 
the rank, and any additions of ten per cent previously earned 
for periods of five years constitute the current yearly pay on 
which said ten per cent is to be calculated." 



—142- 

"2d. Were the proceedings and finding of said 
court-martial regular and the sentence duly approved 
in part by the President of the United States as re- 
quired by law? 

"3d. Was Benjamin P. Runkle legally cashiered 
and dismissed from the Army of the United States, 
in pursuance of said court-martial and subsequent 
proceedings? 

"4th. Was the President of the United States 
authorized and empowered by executive order to 
restore said Rankle to the army, as it was claimed 
h6 was restored by the order of August 4, 1877? 

"5th. Is Benjamin P. Runkle now a retired 
army ofRceh:*, with the rank of major, and, as such 
officer, entitled to longevity pay under what is known 
as the Tyler decision? " 

Upon the transfer of Major Runkle's claim to 
the Court of Claims, and in accordance with the rules 
of practice in that court, he (Major Runkle) presented 
his petition to that court. The United States put in 
a counter-claim for all the moneys that had been paid 
to Major Runkle from January 16, 1873, to January 1, 
1884, as a major on the retired list, and claiming 
that Major Runkle was not a major in the army 
during that time, and, hence, not entitled to draw 
pay therefor. 

The conclusions of law by the Court of Claims 
were as follows: 

"1. That the claimant is not entitled to recover 
longevity pay. 

" 2. That the defendants are not entitled, under 
their counter-claim, to recover the pay received by 
the claimant as a retired major, which accrued after 
the 4th of August, 1877, amounting to $14,390.35. 

"3. That the defendants are entitled, under 
their counter-claim, to recover from the claimant 
$9,195.27, being the amount paid him for the time 
between January 16, 1873, and August 4, 1877. 
(19 C. CI. 395.)" 

The opinion of the Court of Claims was delivered 
by C. J. Drake, and states that the question to be 



—143— 

determined is whether or not the sentence of the 
court-martial in the case of Major Runkle was con- 
firmed by President Grant. After citing several 
instances of like confirmations of sentences of dis- 
missal, the opinion states: 

"Our unhesitating judgment is that the finding 
and sentence of the court were legally confirmed by 
President Grant, and that from the date of the official 
promulgation of their confirmation the claimant 
ceased to be an officer of the army." 

Granting that this conclusion is correct, it is i 
difficult to understand how the Court of Claims could 
arrive at the conclusion that the United States was 
not entitled to recover the $14,390.35 received by the 
claimant as a retired major of the U. S. Army, and 
accruing to him after August 4, 1877, the date of the 
order of President Hayes. If the confirmation of 
the sentence of the court dismissing Major Runkle 
was legal, then he ceased to be an officer of the U.S. 
Army, became a civilian, and could be reinstated 
only through the means of a re-appointment by 
the President and a confirmation by the Senate. 
Such being the case, no moneys had properly accrued 
to him as a major after the date of the order con- 
firming his dismissal. A complete record of the de- 
cision of the Court of Claims is not available. ^ 

^Digest of Opinions, J. A. G., 1199. "When a legal sen- 
tence of a dismissal has been duly confirmed and executed, 
the power over the case of the reviewing officer (whether the 
President or the commanding general in time of war) is ex- 
hausted. The reviewing authority, as such, is functus officio. 

* * By no exercise of that power (pardoning power) can the 
sentence be removed or remitted, or the office lost be restored, 

* * And the law has provided no court of appeal or other 
revisory authority by which the same may be reopened or set 
aside; the only remedy is by a new appointment." 

12 Opins. At. Gen. 548. "The case of an oflQcer who has 
been thus reduced in rank differs essentially from that of an 
officer who has been dismissed from the service by sentence 
of a military court. After the latter is duly confirmed and ex- 
ecuted, the dismissed officer cannot be reinstated by means of 
a pardon, or in any other manner than by a new appointment 



-144- 

Both parties appealed from the Court of Claims 
to the Supreme Court of the United States. 

The opinion of the Court was delivered by Mr. 
Chief Justice Waite, and two questions were con- 
sidered. 

1. Were the proceedings of the court-martial 
which tried Major Runkle irregular? 

2. Was the sentence of the court-martial duly 
approved by the President, according to law? 

I The 65th Article of War in effect at the time of 
*the proceedings was as follows: 

"Any general officer commanding an army or 
colonel commanding a separate department, may ap- 
point general courts-martial, whenever necessary. 
But no sentence of a court-martial shall be carried in- 
to execution until after the whole proceedings shall 
have been laid before the officer ordering the same, 
or the officer commanding the troops for the time be- 

and confirmation by the Senate. This is because the execu- 
tion of tlie judgment in effect abrogates tlie officer's commis- 
sion, and entirely dissolves his connection with the service, 
placing him in exactly the same situation relatively thereto 
which he occupied previous to his original appointment, and, 
moreover, a pardon, it has been said, does not operate to res- 
tore an office forfeited." 

4 Opins. At. Gen. 274. "The case of Passed Midshipman 
Moorhead stands precisely, as far as the law is concerned, up- 
on the same footing with that of Lieutenant Whitney. The 
facts disclosed by the record show it to be one in which the 
sentence pronounced and executed was pecuharly harsh and 
severe. The proceedings of the court held in this case I do 
not deem necessary particularly to discuss. I have no difii- 
culty, however in stating that they were exceedingly irregu- 
lar. Testimony, manifestly illegal, was admitted, whilst that 
which was legal was ruled to be indispensable. But still I do 
not perceive how these irregularities can be regarded as an- 
nulling the judgment pronounced. They might have been ap- 
pealed to as reasons why the revisory power, when called to 
act upon the proceedings, should not have approved the find- 
ing and sentence of the court; but that approval having been 
signified, they cannot avail wholly to avoid everything that 
has been done. The judgment of the tribunals created by law 
has been pronounced and carried into effect, and the officer 
upon whom it operated was henceforth unquestionably out of 
the service." 

Also see Ex Parte Garland, 4 Wallace 333, 381. 



—145— 

ing; neither shall any sentence of a general court- 
martial, in time of peace, extending to the loss of 
life, or the dismission of a commissioned officer, or 
which shall, either in time of peace or war, respect a 
general officer, be carried into execution, until after 
the whole proceedings shall have been transmitted to 
the Secretary of War, to be laid before the President 
of the United States, for his confirmation or disap- 
proval, and orders, in the case. All other sentences 
may be confirmed and executed by the officer order- 
ing the court to assemble, or the commanding officer, 
for the time being, as the case may be." 

From the above, the court finds that the sentence 
of a general court-martial, in time of peace, which 
directs the dismissal from service or the cashiering 
of a commissioned officer is inoperative until it is 
properly approved by the President. 

It also finds that a court-martial organized under 
the laws of the United States is a court of hmited and 
special jurisdiction which is brought into existence 
for the performance of a particular duty or for a 
special purpose, and that when that object is accom- 
plished, it is dissolved; that to give efl^ect to its sen- 
tences, it must appear affirmatively that the court 
has jurisdiction; that its sentence was conformable to 
law; and that all statutory requirements with re- 
gard to its proceedings have been complied with. 
This must be shown positively and not left to be in- 
ferred argumentatively. 

The question which the Court considered it im- 
portant to consider was whether or not the approval 
of the President in the case of Major Runkle was 
positively shown. 

The Court also expressed the opinion that the ac- 
tion required of the President is not administrative, 
but is one of a judicial character. The Court does 
not deny that the President, in exercising his power 
under the Constitution, may do so through the pro- 
per executive department; but decides that the ac- 



—146— 

tion required of him upon the proceedings of a court- 
martial are not only of a judicial character; but be- 
ing such, necessitate his personal consideration and 
judgment, and that that judgment must be authen- 
ticated in such a manner as to show affirmatively, 
not merely in an argumentative w^ay, that it is the 
personal judgment of the President. The Court 
quotes 2 Opins. At. Gen., 21: 

"Undoubtedly the President, in passing upon the 
sentence of a court-martial, and giving to it the ap- 
proval without which it cannot be executed, acts 
judicially. The trial, finding, and sentence are the 
solemn acts of a court organized and conducted un- 
der the authority of and according to the prescribed 
forms of law. It sits to pass upon the most sacred 
questions of human rights that are ever placed on 
trial in a court of justice; rights which, in the very 
nature of things, can neither be exposed to danger 
nor subject to the uncontrolled will of man, but 
which must be adj udged according to law. And the act 
of the officer who reviews the proceedings of the 
court, whether he be the commander of the fleet or 
the President, and without whose approval the sen- 
tence cannot be executed, is as much a part of this 
judgment, according to law, as is the trial or sen- 
tence. When the President, then, performs this du- 
ty of approving the sentence of a court-martial dis- 
missing an officer, his act has all the solemnity and 
significance of the judgment of a court of law." 

The Court then discusses the question as to 
whether or not the sentence dismissing Major Runkle 
was properly approved by President Grant, in the 
following language: 

"It does not appear affirmatively that it was dis- 
approved by President Hayes; and if not approved 
by President Grant, Runkle was never legally out of 
the service. It is true that, if it had been approved, 
the subsequent disapproval would have been a nulli- 
ty, and could not have the effect of restoring him to 
his place; but if not approved, he was never out, and 
the disapproval kept him in, the same as if the 



—147— 

court-martial had never been convened for his trial. 
In Blake vs. United States, 103 U. S. 227, followed in 
United States vs. Tyler, 105 U. S. 244, it was decided 
that the President had power to supersede or remove 
an officer of the army by appointment, by and with 
the consent of the Senate, of his successor; but here 
there was nothing of the kind. Runkle was never 
removed otherwise than by the sentence of the 
court-martial, and the order of the War Department 
purporting to give it effect." 

Referring to the order, the court says: 
"It is signed by the Secretary of War alone and, 
the personal action of the President in the matter is 
nowhere mentioned, except in the remission of a 
part of the sentence. There is nothing which can 
have the effect of an affirmative statement that the 
'whole proceedings' had been laid before him for ac- 
tion, or that he personally approved the sentence. 
The facts found by the Court of Claims show that 
the proceedings, findings, and the sentence of the 
court-martial 'were transmitted to the Secretary of 
War, and that he wrote the order thereon', but there 
they stop. What he wrote is in the usual form of 
departmental orders, and, so far as it relates to the 
approval of the sentence, indicates on its face depart- 
mental action only. 

"What follows in the order does not, to say the 
least, clearly show the contrary. It relates to the 
executive clemency which was exercised, and then, 
for the first and only time, it appears, in express 
terms, that the President acted personally in the 
matter. It is there said: ' The President is pleased 
to remit all of the sentence, except so much thereof 
as directs cashiering. ' If all the rest of the order 
was the result of the personal action of the Presi- 
dent, why was it referred to here and not elsewhere? 
Might it not be fairly argued from this that the rest 
was deemed departmental business, and that part 
alone personal which required the exercise of the 
personal power of the President, under the Constitu- 
tion, of granting pardons? And besides, according 
to the order as it stands, the action of the President 
was had, not on the 'whole proceedings,' but 'in 
view of the unanimous recommendations of the mem- 



—148— 

bers of the court, ' ' the former good character ' of 
the accused, and 'in consideration of evidence, by 
affidavits, presented to the War Department since 
the trial,' and 'creditable representations.* If 'the 
whole proceedings' had actually been laid before 
him, as required by the Article of War, it was easy 
to say so. ' ' 

The court calls attention also to the fact that the 
words at the end of the order directing that the 
sentence will be duly executed are immediately pre- 
ceded by that part of the order showing the remission 
of a part of the sentence, which remission is clearly 
shown to be the personal action of the President, 
and draws the conclusion that the failure to show 
that the direction for the execution of the unremitted 
portion of the sentence was the personal action of 
the President indicates clearly that the Secretary of 
War was acting all the time on the idea that the 
personal judgment of the President was required 
only with reference to that part of the proceedings 
requiring the exercise of the pardoning power, and 
that departmental action was all that was necessary 
in regard to the rest of the proceedings. 

The court then finds that it is nowhere shown 
that the proceedings of the court-martial had ever 
been approved or confirmed in whole or in part by 
the President and in accordance with the Article of 
War requiring such action; and that, therefore. 
Major Runkle was never legally dismissed from the 
service or cashiered. That being true, the court 
finds that the action of President Hayes in disapprov- 
ing the finding and sentence of the court-martial is 
legal; that Major Runkle was never legally out of the 
service, and that he is entitled to his longevity pay, 
all money that he had already received as regular 
pay, both before and after the order of Secretary 
Belknap. 



—149— 

CONCLUSIONS 

The conclusions of the court in this case settle 
only one main question: 

That the action of the President in approving or 
disapproving the finding and sentence of a court- 
martial w^hich directs the dismissal or cashiering of 
an officer is of a judicial nature, requiring the exercise 
of a personal judgment, and that such action, to be 
legal, must be shown positively — not argumentatively 
or left to be inferred. 

The court does not go so far as to decide that 
any particular form of order is necessary, nor that 
the signature of the President must be attached 
thereto. 

CASES CITED 

U. S. vs. Tyler, 105 U. S. 244. 
Ex parte Garland, 4 Wall., 333. 
Blake vs. U. S., 103 U. S. 224. 
Opins. At. Gen., 11-21. 



BADEAU vs. THE UNITED STATES 



Supreme Court of the United States, 1888 
130U. S. 439 



Prepared by Captain E. D. Scott, 5th Field Artillery 



I STATEMENT OF THE CASE 

Adam Badeau, 1st Lieutenant, 4th Infantry, was 
retired with the rank of captain to date from May 
18, 1869, for disability incident to a wound received 
in service. From that date until the date of the suit 
he was on consular or diplomatic service, except for 
for two short periods. 

On May 7, 1878, a War Department order issued, 
dropping him from the Army, to date from the date 
of his retirement, under the provisions of paragraph 
1223, Revised Statutes, it being held that he had 
forfeited his commission in the Army by the ac- 
ceptance of a diplomatic post. He promptly applied 
to have the order revoked on the ground that he 
came within the class of officers named in the proviso 
to paragraph 2, Act of March 3, 1875, and, on proper 
proof that this was so, his name was restored to the 
retired list July 3, 1878. 

While holding diplomatic or consular positions he 
drew no pay as an army officer, but did draw such 
pay while not on such duty. He finally decided that 
he was entitled to army pay during all this time, and 
filed a claim for the amount with the Treasurer of 
the United States, and an additional claim for in- 
crease of pay based on length of service, the total 
amounting to more than $18,000.00. 

The Treasurer, on June 21, 1883, transmitted the 

150 



—151— 

claim to the Court of Claims, together with all 
vouchers, proofs, documents, etc., in the case, ''that 
the same might be proceeded in, in said court, as if 
originally commenced therein by the voluntary action 
of the claimant." 

February 19, 1884, Badeau himself filed a peti- 
tion in that court with supplementary evidence as to 
service, etc. 

March 8, 1884, the United States had filed a gen- 
eral traverse to the claim, and on February 10, 1885, 
filed a counter claim for all pay drawn by Badeau 
since the date of his retirement, alleging that in all 
this time he was not in the army nor an officer 
thereof. The United States also pleaded the statute 
of limitations to most of the claim. 

The court found the facts as stated above, but 
being equally divided as to the claimant's right to 
recover, framed the following conclusion of law for 
the purpose of appeal: 

" The petition of the claimant and that of the 
counter-claimant should both be dismissed." Judg- 
ment was entered accordingly. 

Appeals were taken by both parties to the 
Supreme Court of the United States, the records 
being filed therein August 10 and October 5, 1887. 

October 5, 1888, a stipulation was filed, adding 
certain records, conclusions and orders of the Court 
of Claims, and certain matters introduced in evidence 
at a stage of the case prior to the final findings. 

The following points of law arose in this case: 

1. Did Badeau cease to be an officer in the army 
when he accepted a diplomatic post? 

2. While accepting pay under a diplomatic or 
consular appointment, is a retired army officer en- 
titled to receive pay as such? 

3. What is the status of an officer whose name 
is placed on the retired list in apparent compliance 



—152— 

with law, and is money paid to him as salary recover- 
able by the United States? 

Chief Justice Fuller delivered the opinion of the 
court, Justice Miller dissenting. 

The opinion quotes from various statutes relative 
to retired officers of which those directly bearing on 
this case are as follows: 

Act of January 21, 1870 (1259 Rev. Stat): 

"No retired officer of the Army shall hereafter 
be assigned to duty of any kind, or be entitled to re- 
ceive more than the pay and allowances provided by 
law for retired officers of his grade," 

And provided that any assignments then exist- 
ing be vacated within thirty days. Later this was 
modified so as to exempt officers wanted for duty af 
the Soldiers' Home. 

Paragraph 18, Act of July 15, 1870 (Rev. Stat. 
1222), enacted: 

" That it should not be lawful for any officer of 
the Army of the United States on the active list to 
hold any civil office, whether by election or appoint- 
ment, and any such officer accepting or exercising 
the functions of a civil officer shall at once cease to 
be an officer of the Army and his commission shall 
be vacated thereby." 

Section 2, Act of March 30, 1868 (Rev. Stat. 
1223): 

"That any officer of the Army or Navy of the 
United States who shall, after the passage of this 
act, accept or hold any appointment in the diplomatic 
or consular service of the government shall be con- 
sidered as having resigned his said office, and the 
place held for him in the military or naval service 
shall be deemed and taken to be vacant, and shall be 
filled in the same manner as if the said officer had 
resigned the same." 

It was in conformity with the latter that Badeau 
was dropped from the Army in 1878. The Supreme 
Court observes that under the laws just quoted a 



-153- 

retired officer was barred from holding a consular or 
diplomatic office, but not from a civil office, while an 
officer of the active army was barred from all three. 

But Section 2, Act of March 3, 1875, providing 
for the rank and pay of officers retired for disabihty, 
contained a proviso that the terms of this act should 
not apply to officers who had been retired by reason 
of the loss of an arm or leg, or its permanent dis- 
abling by reason of wounds received in action, and 
that " every such officer now borne on the retired list 
shall be continued thereon, notwithstanding the pro- 
visions of Section 2, Chapter 38, Act of March 30, 
1868." 

Badeau's case was held to be clearly within this 
proviso, and that he could properly hold a position 
in the diplomatic or consular service. 

Concerning the question of pay, the court quotes 
Sections 1763, 1764 and 1765 of the Revised Statutes: 

' ' No person who holds an office, the salary or 
annual compensation attached to which amounts to 
the sum of $2,500.00, shall receive compensation for 
discharging the duties of any other office, unless ex- 
pressly authorized by law. 

"No allowance or compensation shall be made 
to any officer or clerk, by reason of the discharge of 
duties which belong to any other officer or clerk in 
the same or any other department, and no allowance 
or compensation shall be made for any extra services 
whatever, which any officer or clerk may be required 
to perform, unless expressly authorized by law. 

"No officer in any branch of the public service, 
or any other person whose pay, salary or emoluments 
are fixed by law or regulations, shall receive any 
additional pay, extra allowance or compensation, in 
any form whatever, for the disbursement of public 
money, or for any other service or duty whatever, 
unless the same is authorized by law, and the appro- 
priation therefor explicitly states that it is for such 
additional pay, extra allowance, or compensation." 

Since General Badeau received $7,500.00 a year 



—154— 

in one post and $6,000.00 a year in another later, it 
was certain that he was inhibited from receiving any 
other pay, allowance, etc., unless expressly author- 
ized by law, which was not claimed. 

"It has been decided that a person holding two 
offices or employments under the government, when 
the services rendered or which might be required 
under them, were not incompatible, is not precluded 
from receiving the salary or compensation to both. ^ 
But the Treasury Department did not apparently 
regard this case as falling within that exception, and 
we agree with that conclusion."" 

The court held that Badeau's right to hold two 
offices did not change the general policy of the law, 
and that while absent from the country in the dis- 
charge of continuous official duties inconsistent with 
subjection to the Rules and Articles of War and other 
incidents of service, he was not entitled to pay as a 
retired officer. 

As to the counter claim, although the rule that 
money paid under a mistake of law is not recoverable 
is held not to apply in a case where the United States 
is a party, on the ground that the government is not 
bound by the mistakes of its officers, whether of law 
or fact, still the court considers that Badeau was a 
de facto officer if not de jure, and was entitled to 
keep what army pay he had received. ^ 

Judgment of the Court of Claims was therefore 
affirmed. 

CASES CITED 

SUPREME COURT 

U. S. VS. Brindle, 110 U. S. 688. 
McElrath vs. U. S., 102 U. S. 426. 

iConverse vs. U. S., 21 How. 463: U. S. vs. Brindle, 110 
U. S. 688. 

^U. S. vs. Shoemaker, 7 Wall. 338; Stansbury vs. U. S., 
8 Wall. 33; Hoyt vs. U. S., 10 How. 109, 141. 

3U. S. vs. Kirkpatriek. 9 Wheat. 720; U. S. vs. Bank of 
Metropolis, 15 Pet. 377; McElrath vs. U. S., 102 U. S. 426. 



—155— 

Wood vs. U. S., 107 U. S. 414, 417. 
Converse vs. U. S., 21 How. 109, 141. 
U. S. vs. Shoemaker, 7 Wall. 328. 
Stansbury vs. U. S., 8 Wall. 33. 
U. S. vs. Kirkpatrick, 9 Wheat. 720. 
U. S. vs. Bank of Metropolis, 15 Pet. 377. 
R. S. 1222, 1223, 1256, 1258, 1259, 1260, 1763, 
1764, 1765. 



SWAIN V. UNITED STATES 



Supreme Court of the United States, 1897 



165 U. S. 553 

Prepared by Captain F. M. Caldwell, 12th Cavalry 



STATEMENT OF THE CASE 

In 1884 David G. Swain, Judge- Advocate Gen- 
eral, United States Army, was tried by a general 
court-martial appointed by the President, upon 
charges prepared by direction of the Secretary of 
War. 

The proceedings were twice returned by the 
President to the court-martial for reconsideration of 
the findings on certain charges and of the sentence 
with recommendations for a more severe sentence. 

In conformity with these recommendations the 
court twice changed the sentence; and the third sen- 
tence, viz. : 

* 'To be suspended from rank and duty for twelve 
years and to forfeit one-half of his monthly pay each 
month for the same period," 

was approved February 24, 1885. 

In February, 1891, General Swain filed a petition 
in the Court of Claims asking that, for certain reasons 
therein set forth, the proceedings, finding and sen- 
tence of the court-martial be set aside and that judg- 
ment be rendered awarding him the amount of his 
pay and allowances retained in pursuance of the said 
sentence. The Court of Claims made certain findings 
of fact and on February 27, 1893, entered a final 
judgment dismissing the petition. From the judg- 
ment appeal was taken to the Supreme Court. 

156 



—157— 
POINTS OF LAW DECmED 

1. Power of the President to appoint a general 
court-martial. 

2. Whether routine orders directing the inves- 
tigation of accusations against an officer and appoint- 
ing a court-martial for his trial on charges preferred 
as the result of such investigation, constitute the 
President (or appointing officer) his accuser or pros'^ 
ecutor within the meaning of the 72d Article of War. 

3. Power to attack the sentence of the court" 
martial collaterally in a civil court by inquiry whether 
the trial by officers inferior in rank to the accused 
was or was not avoidable. 

4. Power of a civil court to set aside the proceed- 
ings and sentence of a court-martial when it has juris- 
diction and acts within the scope of its lawful powers. 

5. Right of a reviewing officer to return the pro- 
ceedings more than once to a court-martial for recon- 
sideration, with recommendations for a more severe 
sentence. 

6. Right of an officer of the army to emoluments 
or allowances when suspended from duty. 

OPINION 

Justice Shiras delivered the opinion of the court. 

The theory of the claimant's petition was that 
the sentence of the court-martial was void and con- 
stituted no defense to his action for pay retained 
under it. 

The contentions urged on behalf of the appellant 
were briefly as follows: 

First.— That the President had no authority to 
appoint the court-martial in question. 

The argument was based on the language of the 
72d Article of War, viz. : 

"Any general officer commanding the army of 
the United States, or a separate army or a separate 



—158- 

department shall be competent to appoint a general 
court-martial either in time of peace or in time of 
war. 

"But when any such commander is the accuser or 
prosecutor of any officer under his command, the court 
shall be appointed by the President and its proceed- 
ings or sentence shall be sent directly to the Secre- 
tary of War, by whom it shall be laid before the 
President for his approval or orders in the case." 

It was claimed in effect, that in the 72d Article 
of War just quoted, is found the only power of the 
President as commander-in-chief of the army to ap- 
point a general court-martial. 

The court approved the conclusions of the Court 
of Claims that it is within the power of the President 
of the United states, as commander-in-chief, to validly 
convene a general court-martial even where the com- 
mander of the accused officer to be tried is not the 
accuser. 

Second.— It was contended that the President 
was the accuser or prosecutor of the appellant within 
the meaning of the 72d Article of War, because he 
had ordered a court of inquiry to investigate certain 
charges made by a civilian against General Swain, 
and had later appointed a general court-martial for 
the trial of the appellant upon charges prepared by 
direction of the Secretary of War upon receipt of the 
report of the court of inquiry. 

This contention was held to be wholly unfounded, 
the court stating that such routine orders could not 
be construed as making the President his accuser or 
prosecutor. 

By inference, this decision extends to any mili- 
tary commander under similar circumstances. 

Third. — That the court was constituted in viola- 
tion of the 79th Article of War which provides " * 
* and no officer shall, when it can be avoided, be 
tried by officers inferior to him in rank." 



-ISO- 
It appears that a majority of the court-martial^ 
as organized for the trial, was composed of colonels, 
and it was argued that the record did not disclose 
affirmatively that the appointment of officers inferior 
in rank to the accused was unavoidable by reason of 
some necessity of the service. 

The court, quoting from the cases of Martin vs* 
Mott, 12 Wheat. 19, 24, 35, and Mullan vs. United 
States, 140 U. S. 140, 245, held that the presumption 
must be that the President in detailing the officers 
named to compose the court-martial, acted in pur- 
suance of law, and that the sentence could not be col- 
laterally attacked by going into an inquiry whether 
the trial by officers inferior in rank to the accused 
was or was not avoidable. 

Fourth.— Thsit the Court of Claims erred in over- 
ruling an exception to the action of the court-martial 
in permitting, after objection made, an officer to sit 
on the trial whom the appellant had severely criti- 
cised in official reports and whose enmity and dislike 
had been thereby incurred. 

It was held that the provisions of the 88th Ar- 
ticle of War disposed of this question and that the 
decision of the court-martial in determining the val- 
idity of a challenge could not be reviewed by the 
Court of Claims in a collateral action. 

Fifth. — Various errors of procedure on the part 
of the court-martial were alleged in the petition. It 
was the opinion of the Court of Claims that the errors 
so assigned could not be reviewed collaterally and 
that they did not effect the legality of the sentence. 

This opinion was approved by the Supreme Court 
as being in accord with the authorities. 

The court stated: 

"* * * the court-martial having jurisdiction 
of the person accused, of the offense charged, and 
having acted within the scope of its lawful powers, 
its proceeding and sentence cannot be reviewed or 
set aside by a civil court." 



-leo— 

Sixth. —That no offense under the 62d Article of 
War was shown by the facts and that the Court of 
Claims should have so found and have held the sen- 
tence void. 

It was held that the conclusions of a court-mar- 
tial in such matters cannot be controlled or reviewed 
by the civil courts. 

Seventh.— That the action of the President in 
twice returning the proceedings to the court-martial, 
U|-ging a more severe sentence, was without authority 
of law and that the last sentence, having resulted 
from such illegal conduct, was absolutely void. 

Held that the President acted lawfully and in 
conformity with Army Regulations; that the court 
in modifying its sentence was acting within the scope 
of its lawful authority and that its proceedings could 
not be collaterally impeached for any mere error or 
irregularity. 

It was further held that the Court of Claims did 
not err in deciding that where an officer is suspended 
from duty, he is not entitled to emoluments or allow- 
ances. 

The court concluded its opinion as follows: 

"As we have reached the conclusion that the 
court-martial was duly convened and organized and 
that the questions decided were within its lawful 
scope of action, it would be out of place for us to ex- 
press any opinion on the propriety of the action of 
the court in its proceedings or sentence. 

"If the appellant was harshly dealt with and a 
sentence of undue severity finally imposed, the 
remedy must be found elsewhere than in a court 
of law." 

DECISION 

' 'The decree of the Court of Claims is— affirmed. " 
Cases Cited 
Dynes v. Hoover, 20 How. 65, 82. 
Keyes v. United States, 109 U. S. 336. 



—161— 

Smith V. Whitney, 116 U. S. 167. 
Runkle's Case, 19 C. CI. 896, 409. 
Martin v. Mott, 12 Wheat. 19, 34, 35. 
Mullan V. United States, 140 U. S. 140, 245. 
Ex parte Reed, 100 U. S. 13. 
Johnson v. Sayre, 158 U. S. 109. 
United States v. Fletcher, 148 U. S. 84. 
United States v. Phisterer, 94 U. S. 219. 



STANTON CARTER v. McCLAUQHRY 



Supreme Court of the United States, 1902 
183 U.S. 365 



Prepared by Major C. S. Farnsworth, 16th U. S. 
Infantry. 



STATEMENT OF THE CASE 

Captain Oberlin M. Carter, Corps of Engineers, 
U.S. Army, stationed in Savannah, Ga., in charge of 
river and harbor improvements, v^as tried in 1899 by 
court-martial on four charges, 

1st Charge. —Conspiracy to defraud the United 
States in violation of the 60th A. W. 

2d Charge. —Causing false and fraudulent claims 
to be made against the United States in violation of 
the 60th A. W. 

3d Charge. —Conduct unbecoming an officer and 
a gentleman in violation of the 61st A. W. 

4th Charge.— Embezzlement as defined in Section 
5488, Revised Statutes, in violation of the 62d A. W. 

Under each charge there w^ere two or more 
specifications. To one or more specifications under 
each charge he pleaded the Statute of Limitations, 
v^hich plea was sustained by the court-martial. 

To four specifications under Charge III (Conduct 
unbecoming, etc.) he was found not guilty. He was 
convicted of the other specifications and of all four 
charges and the sentence was approved by the 
President, September 29, 1899. 

The finding of the court of guilty as to twelve 
of the specifications was disapproved by the Presi- 

162 



—163— 

dent but he approved the finding of guilty of at 
least one specification under each charge. 

In the specifications of which he was found guil- 
ty and of which the President approved the findings 
Carter was charged: With conspiracy to defraud the 
United States on two occasions in 1896 and 1897 by 
manipulating advertisements, and information as to 
giving out of contracts, receiving proposals and mak- 
ing awards for bids for material and labor for certain 
engineering improvements in Savannah harbor and 
Cumberland Sound, Ga., so that the Atlantic Con- 
tracting Co. obtained the contract, furnished material 
inferior to that called for in the contract and was 
paid over $575,000.00 for such inferior material as 
though the material was as called for in the contract; 
with causing false and fraudulent claims to be made 
against the United States by causing the Atlantic 
Contracting Co. to present claims for over $575, 000. 00 
for inferior material furnished as above indicated; 
with entering on government pay rolls the names of 
certain persons as laborers and causing them to be 
paid as such whereas they had rendered no services 
as laborers; with fraudulently allowing accounts of 
$121.60, $384.00 and $108.88 of the Atlantic Con- 
tracting Co. against the United States for certain 
piling, pile work and pile dams; with conduct unbe- 
coming an officer and a gentleman by paying out 
United States money on fraudulent claims amounting 
to over $576,000.00 as above indicated, by making 
false statements to the Chief of Engineers as to 
soundings for work in Savannah harbor and as to 
rentals on property at Savannah, by falsely certifying 
as correct certain vouchers for material and labor, 
by failing to account for certain funds of the United 
States received by him and by making false reports 
as to his absence from his station; with embezzle- 
ment in violation of the 62d Article of War by paying 



—164— 

out two sums aggregating $575,749.90, United States 
money, not due or owing any person from the United 
States. 

The court sentenced Carter to be dismissed from 
the service of the United States, to be fined $5,000.00, 
to be confined at hard labor at such place as the pro- 
per authority may direct for five years and to have 
his name, place of abode, crime and punishment 
puiblished in certain newspapers. 

The President, notwithstanding that he disap- 
proved the findings of the court as to guilty of 
twelve of the specifications, approved the sentence as 
just now stated and designated the United States 
Penitentiary at Fort Leavenworth as the place of 
confinement. 

To understand this case it should be known that 
previous to this application for writ of habeas corpus, 
in October, 1899, Abram J. Rose applied for a writ of 
habeas corpus to the United States Circuit Court for 
the Southern District of New York and prosecuted 
the writ through the various courts until it was final- 
ly dismissed by the United States Supreme Court. 

In December of that same year, 1899, after 
denial of the above mentioned appHcation for a writ 
of habeas corpus. Carter with others was indicted in 
the United States Circuit Court for the Southern 
District of Georgia for conspiracy to defraud the 
United States, the indictment being based on the 
same facts as set forth in the charges and specifica- 
tions for conviction of which, by a court-martial. 
Carter was undergoing punishment. 

Now to come back to this case: 

Stanton Carter, on behalf of Oberlin M. Carter, 
filed a petition for a writ of habeas corpus in the 
Circuit Court of the United States for the District of 
Kansas in October, 1900, alleging that Oberlin M. 
Carter was imprisoned by the Warden of the United 



—165- 

States Penitentiary at Fort Leavenworth by virtue of 
the sentence as above given; that he had been dis- 
missed from the Army of the United States; that 
his name, abode, crime and punishment had been 
published in the papers as per the sentence; that he 
had paid to the United States the fine of $5,000.00 
and that his imprisonment and detention were con- 
trary to law and were in violation of the Constitution 
of the United States for the following reasons: 

1st. That no evidence was delivered before the 
court-martial to show that any crime had been com- 
mitted by Carter, but on the contrary all the evidence 
showed Carter wholly innocent of any wrong doing; 
hence the sentence was wholly void. 

2d. That the finding of guilty of embezzlement 
in violation of the 62d Article of War and the impos- 
ing of a sentence were therefore illegal and void for 
two reasons: (a) the two sums of money alleged to 
have been paid out by Carter for a purpose not au- 
thorized by law were paid out by him for harbor 
improvements under and in accordance with the 
specifications of contracts, entered into pursuant to 
the Act of Congress of June 3, 1896. (b) The acts 
described in the specifications were not in violation of 
the 62d Article of War but if justiciable at all by a 
court-martial they were justiciable under the 60th Ar- 
ticle of War. 

3d. That the imprisonment and detention were 
illegal and contrary to the 102d Article of War, pro- 
hibiting a second trial for the same ofl^ense and were 
contrary to the fifth amendment to the Constitution 
of the United States for the following four reasons: 

(a) The payment of two checks drawn by Carter 
and described in each of the specifications under 
which he was convicted, was the only basis of each 
of the four charges and that the single act of draw- 
ing the two checks had been carved up into four 



—166- 

distinct and different crimes and a punishment as- 
sessed on each. 

(b) The sentence was beyond the powers of the 
court-martial and void because under the 60th Article 
of War the court-martial was authorized to inflict the 
punishment of a fine or imprisonment or such other 
punishment as it might adjudge, 

(c) That under the 61st Article of War the court- 
martial had jurisdiction to inflict the punishment of 
dismissal from the army only. 

' (d) That the facts set out in the specifications 
under the 1st, 2d and 4th charges, respectively, 
brought the offense therein described under the 60th 
Article of War, under which the court-martial had 
jurisdiction only to inflict a fine or an imprisonment 
or some other punishment, in the alternative and not 
cumulatively. 

Jtth. That both the fine and imprisonment were 
beyond the power of court to inflict because both 
were imposed after Carter had ceased to be an officer 
of the army and after he had ceased to be subject to 
the jurisdiction of the court-martial, 

5th. That the punishment of imprisonment was 
beyond the power of the court-martial and void be- 
cause the President in accordance with acts of Con- 
gress had fixed the maximum limit for violation of 
the 60th Article of War, or of the 62d Article of War 
by embezzlement of more than $100,00, at four years 
confinement at hard labor, 

6th. The sentence was wholly void because the 
court having found Carter guilty of a large number of 
specifications had fixed a sentence suitable for such a 
case but the President disapproved the finding of 
guilty of certain of the specifications and then ap- 
proved of the whole sentence of the court. There- 
fore the sentence as finally approved was not the 
sentence ,of the court, nor in mitigation or commuta- 



—167— 

tion of its sentence, but was really in excess of the 
court's sentence. 

During the course of the various applications and 
and appeals, two other points diifering slightly from 
those given above were claimed by Carter, viz. : 

1st. That the specification for embezzlement 
was placed under the 62d Article of War whereas it 
should have been placed under the 60th Article of 
War, because the money was applied to a purpose 
prescribed by law and the crime charged was not to 
the prejudice of good .order and military discipline 
because it was "mentioned" in paragraphs 1, 4 and 
9 of Article 60; therefore the finding under the 62d 
Article was void. 

2d. That the finding under the 62d Article was 
void, and, this being the case, the sentence was void 
and in violation of the fifth amendment to the 
Constitution of the United States because only two 
separate crimes remained charged, viz., conspiracy 
and paying fraudulent claims, while three penalties 
were imposed, viz., dismissal, fine and imprisonment; 
and the sentence was greater than could be imposed 
for any one of the alleged crimes taken singly. 

POINTS OF LAW TO BE DECIDED 

From the foregoing we see that the following 
points of law are to be decided: 

1. May a civil court review the proceedings of a 
court-martial to determine whether the evidence 
brought before the court-martial was sufficient to 
warrant a conviction? 

2. Did the paying out of United States' moneys 
on contracts authorized by Congress but not fulfilled 
in accordance with the terms of contract constitute the 
crime of embezzlement? 

3. Did the paying out of United States' money 
under the circumstances constitute the crime of con- 



—168— 

duct to the prejudice of good order and military 
discipline in violation of the 62d Article of War? 

4. Was Carter twice put in jeopardy of life or 
limb for the same offense in violation of the fifth 
amendment to the Constitution of the United States 
or was he tried a second time for the same offense in 
violation of the 102d Article of War? 

5. Under the 60th Article of War, could the 
court-martial inflict imprisonment and fine and some 
other punishment, or could it only inflict one kind of 
punishment, that is, either imprisonment or fine or 
some other punishment? 

6. Could the drawing of two checks be made 
the basis of charges for four different crimes? 

7. For violation of the 61st Article of War could 
the court-martial inflict any other punishment than 
dismissal? 

8. After Carter had been dismissed from the 
army and thus ceased to be subject to the jurisdiction 
of the court, could he be required to pay a fine, or 
could he be longer imprisoned? 

9. Did the order of the President fixing the 
maximum limits of punishment that courts-martial 
might inflict for certain offenses apply to officers as 
well as to enlisted men? 

10. When a court-martial has found a person 
guilty of several specifications and has given sentence 
accordingly, may the reviewing authority approve the 
the whole sentence when he had disapproved the 
finding of guilty on some of the specifications? 

11. In the 62d Article of War does the wording, 
"Crimes * * * disorders and neglects * * * 
though not mentioned in the foregoing articles," 
mean that crimes, etc., so mentioned are not preju- 
dicial to good order and military discipline? 



—169— 
DISCUSSION OF THE CASE AND OPINION OF THE COURT 

1. Quoting from the case of Carter vs. Roberts 
(177 U. S. 496), the court said: 

"Courts-martial are lawful tribunals, with au- 
thority to finally determine any case over which they 
may have jurisdiction, and their proceedings, when 
confirmed as provided, are not open to review by the 
civil tribunals, except for the purpose of ascertaining 
whether the military court had jurisdiction of the 
person and subject matter, and whether, though 
having such jurisdiction, it had exceeded its powers 
in the sentence pronounced." 

Jurisdiction by the court-martial in this case was 
conceded but it was claimed that the acts charged did 
not constitute an offense and hence the subject mat- 
ter was not within the jurisdiction of the court-martial. 
"Whether the sentence of a military court, approved 
by the reviewing authority, is open to attack on such 
ground is a question which" was not decided in this 
case but it is affirmed that no inquiry into the guilt 
or innocence of the accused is permissible. (Dynes vs. 
Hoover, 20 How. 65.) 

2. Did the paying out of the United States funds 
under the circumstances constitute the crime of em- 
bezzlement? 

Section 5488 Revised Statutes reads, ' 'Every dis- 
bursing officer of the United States who * * * 
for any purpose not prescribed by law withdraws 
from the treasurer or any assistant treasurer or any 
authorized depository, or for any purpose not pre- 
scribed by law transfers or applies any portion of 
the public money intrusted to him, is, in every such 
act, deemed guilty of an embezzlement of the money 
so * * * withdrawn, transferred or applied and 
shall be punished by * * *." 

The court held that the specifications under 
charge 4 detailed acts of Carter v/hich came within 
the meaning of this section of the Revised Statutes 
and it was for the court-martial alone to determine 



—170— 

whether Carter had been guilty of the acts described 
in the specification. 

3. The court likewise held that it was "peculiarly 
for the court-martial to determine whether the crime 
charged", embezzlement, "was to the prejudice of 
good order and military disipline". 

4 and 5. Carter claimed that the finding of guilty 
of the fourth charge (embezzlement in violation of the 
62d Article of War) was beyond the power of the 
court and that if that finding was void then the sen- 
tence of the court was in violation of the fifth amend- 
ment to the Constitution because the sentence was 
greater than the court-martial had jurisdiction to in- 
flict on conviction of any one of the offenses charged, 
taken singly, and because the offenses charged were 
the same within the meaning of the constitutional 
provisions. 

Supposing his claim that the finding of guilty of 
the 4th Charge was beyond the power of the court- 
martial, then was the fifth amendment to the United 
States' Constitution violated by the sentence imposed? 

No, because "the fifth amendment is not appli- 
cable in the proceedings of the court-martial." The 
only objection in this respect that could be legally 
made was that the 102d Article of War, "No person 
shall be tried a second time for the same offense," 
was violated. This objection was not brought out at 
the time of the trial and is therefore assumed to have 
been waived and is not now permissible on the appli- 
cation for habeas corpus. 

Further, if the objection had been made before 
the court-martial it was within the power of the 
court-martial to decide the matter and if the decision 
was incorrect it was then a matter of error and would 
have nothing to do with the jurisdiction. 

(See In re Belt, Petitioner, 159 U. S. 95, and Ex 
parte Bigelow, 113 U. S. 328, 330.) 



—171— 

As to that portion of the argument that the sen- 
tence was greater than the court-martial had juris- 
diction to inflict on conviction of any one of the 
offenses charged, taken singly, the court states in 
effect as follows: 

Article 60 says that any person in the military 
service who makes or causes to be made any claim 
against the United States knowing such claim to be 
false, etc., etc., "gjiall on conviction thereof be pun- 
ished by fine or imprisonment or such other punish- 
ment as a court-martial may adjudge." 

Article 61 says that "any officer who is convicted 
of conduct unbecoming an officer and a gentleman 
shall be dismissed from the service." 

It was claimed by Carter that punishment must 
be imposed under either one or the other or both of 
the above Articles of War; that under the 61st Arti- 
cle the only possible punishment is dismissal and 
that under the 60th Article the punishment is alter- 
native but not cumulative, that is, any of the named 
punishments might be inflicted but not two or more 
than two of those named. It was then claimed that 
the sentence of dismissal and fine having been im- 
posed and carried into execution the imprisonment 
he was now undergoing was illegal. The court how- 
ever decided that the use of the word, "or," in des- 
cribing the punishment under the 60th Article was 
only intended to give discretion to the court imposing 
sentence and did not prevent the imposing of both 
fine and imprisonment. (Winthrop, vol. 2, p. 1101.) 

In support of this interpretation of the word, 
"or," the court went into the history of the origin 
and growth of the 60th Article of War. The court 
also stated that if Carter's claim as to the meaning 
of the 60th Article of War was correct, yet both fine 
and imprisonment could be imposed in this case under 
that Article because several offenses had been com- 



—172- 

mitted by Carter, as shown under the specifications 
to that charge, and a fine could be imposed for one of 
these offenses and imprisonment for another and the 
two given as an entirety for violation of the various 
provisions of the Article, as prescribed in the specifi- 
cations. This is the usual method in court-martial 
procedure. 

The court says: "The offenses charged under 
this Article were not one and the same offense. 
* * * The first charge alleged 'a conspiracy to 
defraud ' and the second charge alleged ' causing false 
ahd fraudulent claims to be made, ' which were sep- 
arate and distinct offenses, one requiring certain 
evidence which the other did not. The fact that 
charges related to and grew out of one transaction 
made no difference." 

In support of this the court quotes from the 
Supreme Court of Massachusetts in the case of Morey 
vs. Commonwealth, 108 Mass. 433, as follows: 

"A conviction or acquittal upon one indictment 
is no bar to subsequent conviction and sentence upon 
another, unless the evidence required to support a 
conviction upon one of them would have been suffi- 
cient to warrant a conviction upon the other. The 
test is not whe.ther the defendant has already been 
tried for the same act, but whether he has been put 
in jeopardy for the same offense. A single act may 
be an offense against two statutes; and if each stat- 
ute requires proof of an additional fact which the 
other does not, an acquittal or conviction under 
either statute does not exempt the defendant from 
prosecution and punishment under the other." 
(Winthrop, Vol. I (2d Ed.) 614; Rose ex rel. Carter 
vs. Roberts, 99 Fed. Rep. 948.) 

The court therefore decided that the sentence 
given was not in excess of that which the court-martial 
was authorized to impose and he had not been twice 
tried for the same offense. (In re De Bara, 176 U. S. 
316; In re Henry, 123 U. S. 372.) 

6. Carter claimed that the offense of conduct 



—173— 

unbecoming an officer and a gentleman was the same 
offense as those charged under the 60th Article of 
War, but was called by a different name, and there- 
fore the punishment of dismissal was illegal because 
a third punishment was given when but two offenses 
were committed. To this claim the court answers: 

"The offense of conduct unbecoming an officer 
and a gentleman is not the same offense as conspiracy 
to defraud or the causing of false and fraudulent 
claims to be made, although to be guilty of the latter 
involves being guilty of the former." 

Moreover, conviction of fraud and causing false 
claims to be presented subjects the officer to liabilty 
to dismissal as is indicated in the 100th Article of 
War. 

(See also distinction made between "act" and 
"offense" in 4 and 5 ante.) 

7. The claim of Carter that for conduct unbecom- 
ing an officer and a gentleman he could receive no other 
punishment than dismissal was accepted by the court 
as correct without remark. 

8. The different provisions of the sentence took 
effect concurrently while the accused was under 
control of the military authorities as an officer, the 
date of all the punishments being the same. After 
he was sentenced his status was that of a military 
prisoner held by the United States as an offender 
against its laws, and subject as such to the Rules and 
Articles of War. (Rev. Stat., Sec. 1361.) It is a 
principle of law that where jurisdiction has attached 
it cannot be divested by mere subsequent change of 
status. (Barrett vs. Hopkins, 7 Fed. Rep. 312; Cole- 
man vs. Tennessee, 97 U. S. 509; Ex parte Mason, 
105 U. S. 606.) 

9. The term of imprisonment as per Carter's sen- 
tence was five years instead of four, as fixed by the 
President for such a case in his orders giving maxi- 



-174— 

mum limits of punishment. The order of the Presi- 
dent prescribing limits of punishment used the words 
"enlisted men" in all cases, but the Army Regula- 
tions of 1907 provided that— 

"Whenever by any of the Articles of War pun- 
ishment is left to the discretion of the court, it shall 
not, in time of peace be in excess of a limit which the 
President may prescribe. The limits so prescribed 
are set forth in the Manual for Courts-Martial." 

* This manual makes no attempt to extend the 
limitations to others than enlisted men, hence it was 
decided that the President's orders as to maximum 
punishments applied only to enlisted men and did not 
affect this case. 

10. Does the sentence cease to be the sentence of 
the court-martial because of the disapproval of certain 
specifications by the reviewing authority? 

In the Articles of War enacted by Congress on 
April 10, 1806, the 65th Article read: 

"But no sentence of a court-martial shall be 
carried into execution until after the whole proceedings 
shall have been laid before the officer ordering the 
same or the officer commanding the troops for the 
time being." 

In the revised statutes this article became Section 
104 and read: 

* 'No sentence of a court-martial shall be carried 
into execution until the whole proceedings shall have 
been approved by the officer ordering the court or by 
the officer commanding for the time being." 

On July 27, 1892, this was amended to read: 

"No sentence of a court-martial shall be carried 
into execution until the same shall have been approved 
by the officer ordering the court or by the officer 
commanding for the time being." 

Note that the original required the whole pro- 
ceedings to be laid before the reviewing authority and 



— i75— 

the revised statute that the whole proceedings should 
be approved, while the amended article (Act of July 
27, 1892, )requires that the sentence should not be car- 
ried into execution until it was approved. Hence, 
approval of the sentence only, and not of the whole 
proceedings, is now required before carrying the 
sentence into execution. 

"In criminal cases, the general rule is that if 
there is any one count to support the verdict, it shall 
stand good, notwithstanding all the rest are bad." 
(Claassenvs. U. S., 142 U. S. 140, 146; Peake vs. 
Oldham, Cowper 275, 276; Rex vs. Benfield, 2 Bur. 
980, 985; Grant vs. Astle, 2 Dong. 722, 730). 

In this country, "in any criminal case a general 
verdict and judgment on an indictment or informa- 
tion containing several counts cannot be reversed on 
error, if any one of the counts is good and warrants 
the judgment, because, in the absence of anything 
in the record to show the contrary, the presumption 
of law is that the court awarded sentence on the good 
counts only." 

This is illustrated in Ballew vs. U. S., 160 U. S. 
187, and Putnam vs. U. S., 162 U. S. 687. 

Carter's argument was that had the court-mar- 
tial acquitted him on the specification as to which 
their finding of guilty was disapproved, the sentence 
would have been lighter, hence the President should 
have sent the case back to the court for reconsidera- 
tion or should have mitigated the punishment and 
that, since he did neither of these, the punishment 
must be regarded as increased. 

Court-martial procedure permits an indefinite 
number of offenses being charged and tried in the 
same proceeding and whenever an officer is supposed 
to be guilty of several offenses, charges covering 
them all should be preferred and brought to trial at 
the same time. 

"A duly approved finding of guilty on one of 
several charges, a conviction upon which requires of 



—176— 

authorizes the sentence adjudged, will give validity 
and effect to such sentence, altho' the similar findings 
on all the other charges are disapproved as not war- 
ranted by the testimony." (Dig. Op. Judge-Advo- 
cate Gen., Ed. 1895, p. 696. Same, Ed. 1868, pp. 343, 
350. 

The President disapproved of the findings of 
guilty of some of the specifications but approved the 
findings of guilty of one or more specifications under 
each charge, and of the findings of guilty of all the 
charges and approved the sentence. It was discre- 
tionary with him to refer the proceedings back to 
the court for a revision but he was not obliged to do 
so if he thought the sentence was justified by the find- 
ings which he did approve. As President he might 
have pardoned, as reviewing authority he might have 
pardoned or mitigated the punishment adjudged ex- 
cept that of dismissal but he had no power to add to 
the punishment. Not thinking it proper to remand, 
mitigate or pardon he acted within his authority 
"and the judgment he rendered cannot be disturbed 
on the ground of such action." 

11. In the 62d Article of War what is the effect 
of the phrase, ' 'though not mentioned in the forego- 
ing Articles of War"? 

"The construction would not be unreasonable if 
it were held that the words, 'though not mentioned 
in the foregoing Articles of War,' meant 'and that 
the Article was intended to cover all crimes whether 
previously enumerated or not'. The reference is to 
crimes created or made punishable by the common 
law or by the statutes of the United States, when 
directly prejudicial to good order and military dis- 
cipline. We think it would be going much too far to 
say that if a court-martial so construed the words, 
and sentenced for a crime previously mentioned, the 
sentence, when made his own by the President, 
would be absolutely void." 

Winthrop however holds the contrary (Vol. 2, p. 
1126). 



However, even if Winthrop's view should be 
accepted it was thought by the court that the crime 
specified in the 4th Charge was not one that could be' 
regarded as mentioned in the foregoing articles be- 
cause the specifications under the 4th Charge set 
forth acts that constituted embezzlement as per Sec- 
tion 5488, Revised Statutes, but not the acts described 
in the 60th Article of War. The funds of the United 
States intrusted to Carter for disbursement were not 
"furnished or intended for the military service" but 
were for river and harbor improvement. 

DECISION OF THE COURT 

The order of the lower court was aflfirmed and 
Carter held to complete his sentence. 

LIST OF AUTHORITIES AND CASES CITED 

* Dig. Op. Judge- Advocate Gen., Ed. 1895, p. 
696. 
Dig. Op. Judge- Advocate Gen., Ed. 1868, pp. 
343, 350. 

Winthrop's Mihtary Law, Vol. 2, 2d Ed., p. 

1101. 
Winthrop's Military Law, Vol. 1, 2d Ed., p. 

614. 
Winthrop's Military Law, Vol. 2, 2d Ed., p. 

1126. 

29 Stat. 202, c. 314. 

30 Stat. 11, 44, c. 2. 

Revised Statutes §1342, 5488, 5442. 
Revised Statutes §5438. 
Revised Statutes §1361. 

In re Carter, 97 Fed. Rep. 496. 
In re Carter, 99 Fed. Rep. 948. 

Carter vs. Roberts, 176 U. S. 684. 
Carter vs. Roberts, 177 U. S. 496. 
Carter vs. Roberts, 105 Fed. Rep. 614. 

Smith vs. Whitney, 116 U. S. 178. 
Morey vs. Commonwealth, 108 Mass. 433. 



-178— 

In re Henry, 1 23 U. S. 372. 

In re De Bara, 179 U. S. 316. 

Dynes vs. Hoover, 20 How. 65. . 

Rose ex rel. Carter vs. Roberts, 99 Fed. 

Rep. 948. 
Barrett vs. Hopkins, 7 Fed. Rep. 312. 
In re Belt, Petitioner, 159 U. S. 95. 
U. S. vs. Fletcher, 148 U. S. 84. 
Coleman vs. Tennessee, 97 U. S. 509. 
Ex parte Bigelow, 113 U. S. 328, 330. 
Ex parte Mason, 105 U. S. 696. 
Smith vs. Whitney, 116 U. S. 178. 
Claassen vs. U. S., 142 U. S. 140, 146. 
Peake vs. Oldham, Cowper 275, 276. 
Rex vs. Benfield, 2 Bur. 980, 985. 
Grant vs. Astle, 2 Dong. 722, 730. 
Ballew vs. U. S., 160 U. S. 187. 
Putnam vs. U. S., 162 U. S. 687. 
Swain vs. U. S., 165 U. S. 553. 
16 Op. Att. Gen. 349. 
7 Op. Att. Gen. 604. 
22 Op. Att. Gen. 595. 
22 Op. Att. Gen. 589. 



KIRKMAN vs. McCLAUQHRY 



Circuit Court, District of Kansas, First Division, 1907 
152 Federal Reporter 255 



Prepared by Captain G. L. Townsend, 1st Infantry 



STATEMENT OF CIRCUMSTANCES 

This is a petition for a writ of habeas corpus 
filed by George W. Kirkman, late Captain, 25th In- 
fantry, against R. W. McClaughry, the warden of 
the United States penitentiary at Fort Leavenworth, 
where the petitioner is confined by authority of sen- 
tences of general courts-martial duly and regularly 
entered against him and properly approved in com- 
pHance with the Articles of War. 

In pursuance of Special Orders 9, dated Head- 
quarters Department of the Missouri, January 9, 
1905, Kirkman was regularly tried by a general 
court-martial for violation of the 61st and 65th Arti- 
cles of War. He was convicted on May 23, 1905, and 
sentenced as follows: 

"And the court does therefore sentence him. 
Captain George W. Kirkman, Twenty-fifth United 
States Infantry, to be dismissed from the service of 
the United States and to be confined at hard labor in 
such penitentiary as the reviewing authority may direct 
for the period of two (2) years." 

The above trial was delayed, and, while await- 
ing its termination, Kirkman was again tried for 
violation of the 61st and 62d Articles of War, per 
Special Orders 47, dated Headquarters Department 
of the Missouri, March 13, 1905, and was convicted 
and sentenced to be dismissed the service and to be 

179 



—ISO- 
confined at hard labor for one year. The form of the 
sentence was the same as the above. 

The sentences in both cases was approved by the 
President on the same day, June 15, 1905. The trials 
were before separate courts-martial and for distinct 
offenses. 

In his petition Kirkman says: "Your petitioner 
further shows to your honorable court that a sentence 
of a court-martial becomes valid only when sanctioned 
by the reviewing authority; that the sentences of 
both of the above-mentioned courts-martial were ap- 
proved on the same day by the reviewing authority, 
namely, June 15th, 1905; that both sentences began 
to run on said day; that on January 22, 1907, allowing 
for good behavior, a time equal to the longest sen- 
tence had been served; that both sentences ran con- 
currently, and therefore on said 22d day of January, 
1907, both sentences had been served and suffered." 

POINTS OF LAW TO BE DECIDED 

1. Did the sentences in the two trials of Kirkman 
operate consecutively or concurrently? 

2. Will the word "soldiers" in paragraph 981, 
Army Regulations, be construed to apply to officers 
as well as private soldiers? 

DECISION OF THE COURT 

Pollock, District Judge. 

He states that it is the settled rule in civil courts 
(the term "civil" being used in contradistinction to 
military) that when imposing sentence upon an 
offender convicted of two or more counts charging 
separate and distinct offenses, or after conviction in 
two or more cases in which distinct crimes are charged, 
that the terms of imprisonment imposed may run 
consecutively or cumulatively instead of concurrently; 
that is, the second term to begin at the expiration of 
the first, etc. Blitz vs. United States, 153 U. S. 308; 



—181— 

Howard vs. United States, 75 Fed. 986; In re Esmond 
(D. C), 42 Fed. 827. 

However, conceding the power of the court in 
such cases to impose sentence against an offender 
prescribing different terms of imprisonment to run 
consecutively, as a settled rule the sentence pro- 
nounced must clearly and definitely express the pur- 
pose and^intent that the terms are to be served con- 
secutively, or it will be held the terms run concur- 
rently, and not cumulatively. U. S. vs. Patterson, 
29 Fed. 775; Ex parte Gafford, 25 Nev. 101; Ex parte 
Hunt, 28 Tex. 

From the above, his conclusion is that if the 
sentences imposed by courts-martial had been im- 
posed by a civil court, that the petitioner would be 
entitled to his discharge because the language of the 
sentences does not imply an accumulative term of 
imprisonment. 

The question is raised as to whether the rules of 
law are applied to judgments of courts-martial as 
they are to those of civil tribunals, and he says: 

' ' Courts-martial possess the same full, complete, 
and plenary jurisdiction over offenses committed 
against military law as have civil courts of the 
country over controversies within their cognizance, 
and while acting within the sphere of such exclusive 
jurisdiction they are supreme." Carter vs. Roberts, 
177 U. S. 497; In re Grimley, Petitioner, 137 U. S. 
147; Smith vs. Whitney, 116 U. S. 167. 

There was no question raised as to the jurisdiction 
of the court-martial, and the court says: 

"Coming, then, to the consideration of the pre- 
cise question involved, the legal effect of the sentences 
imposed upon petitioner as a justification to _ the 
warden for his admitted detention of petitioner, it is 
clear to my mind such legal intent must be founded 
in the law administered by courts-martial imposing 
the sentence against the petitioner, as construed by 



—182— 

those officers of the War Department of the govern- 
ment learned in military law and its practice as 
enunciated in the adjudicated cases emanating from 
that department, for, as has been said, while such 
ruHngs may not be binding upon this court, yet they 
are entitled to great weight and consideration, and 
should not be overthrown, except for the most cogent 
reasons and upon undoubted grounds. 

Paragraph 981 of the Army Regulations provides: 
' ' When soldiers either undergoing or awaiting sen- 
tence commit offenses for which they are tried and 
sentenced the second sentence shall be executed upon 
the expiration of the first. 

This regulation, as has been seen, is embodied 
in and forms a part of the law administered by 
courts-martial. Under the language of the return 
which is admitted by petitioner to be true, this regu- 
lation is directly applicable to and decisive of the 
question involved had petitioner been a private 
soldier instead of an officer of the rank of captain; the 
insistence of petitioner being that this regulation does 
not control here for that reason. Whatever may be 
the distinction in the service, as the term, ' soldier, ' 
and ' officer ' are used in common parlance, I am 
inclined to the opinion that the word ' soldier, ' as 
as employed in this regulation, is used in its general 
signification, and is applicable to petitioner. The 
regulation above quoted would seem from the au- 
thorities on the subject to be the outgrowth of a 
general rule of procedure obtaining in military law 
long prior to its announcement; that is to say, the 
regulation seems to have sprung from the law, and 
not the law from the regulation." 

The works on military law by Winthrop and 
Davis are quoted in support of the above as well as 
opinions by Judge-Advocate General Holt and Judge- 
Advocate General Leiber on the same subject. 

The court proceeds: 

"The above rulings formulate and contain what 
has been the settled practice of the War Department 
of our government on the subject now under investi- 
gation for more than one-third of a century, and these 



—183— 

rulings are known and understood of all men learned 
in military affairs. Such being the settled and well 
known practice of the War Department, and as 
petitioner is now held in conformity to such estab- 
lished practice in execution of the judgments imposed 
by courts-martial, while such practice is not in har- 
mony with that which obtains in civil courts of this 
country, yet I am fully convinced, from the fact that 
he became an officer of the army engaged in the 
service of his country, he is not entitled to insist on 
the rules of law applicable to sentences imposed by 
the civil courts of his country, in the exercise of their 
criminal jurisdiction, being now employed to effectuate 
his release from confinement legally imposed under 
the known and well established practice and pro- 
cedure followed by military courts in the exercise of 
their exclusive jurisdiction, and in conformity with 
the Articles of War and regulations promulgated by 
the President for the government of the service to 
which he was subject when he committed the offenses 
charged, and to the authority of which he must bow. 
' ' It follows that the return made by the warden 
must be held to be a complete justification for the re- 
straint of the petitioner, and the petition be dis- 
missed." 



LIST OF CASES CITED 



SUPREME COURT 

Blitz VS. U. S., 153 U. S. 308. 

Carter vs. Roberts, 177 U. S. 496. 

In re Grimley, Petitioner, 137 U. S. 147. 

Smith vs. Whitney, 116 U. S. 167. 

Kurtz vs. Moffitt, 115 U. S. 487. 

U. S. vs. Healey, 160 U. S. 136. 

Railroad vs. Whitney, 132 U. S. 366. 

U. S. vs. Freeman, 3 How. 566. 

Gratiot vs. U. S., 4 How. 80. * 

Ex parte Reed, 100 U. S. 13. 



—184- 
FEDERAL REPORTER 

Howard vs. U. S., 75 Fed. 986. 
In re Esmond (D. C), 42 Fed. 827. 
U. S. vs. Patterson (C. C), 29 Fed. 775. 
U. S. vs. Clark (C. C.) 31 Fed. 710. 

OTHERS 

Kite vs. Commonwealth, 11 Mete. (Mass.) 581. 

Mims vs. State, 26 Minn. 498. 

State vs. Carlyle, 32 Kan. 716. 

Ex parte Gafford, 25 Nev. 101. 

Wallace vs. State, 41 Fla. 547. 

Larney vs. Cleveland, 34 Ohio St. 599. 

In re Strikler, 51 Kan. 700. 



In re STUBBS 



Circuit Court, D. Washington, W. D. 1905 
133 Federal Reporter 1012 



Prepared by Captain R. H. McMaster, 1st Field 
Artillery. 



STATEMENT OF THE CASE 

In July, 1904, at a maneuver camp, at American 
Lake, Washington, Private Fredie R. Stubbs, Co. K, 
19th U. S. Infantry, shot and killed Private Tom C. 
Vandiver of the same company and regiment. 
Stubbs was delivered, by the officers of his regiment, 
to the civil authorities of Pierce County, Wash. He 
was tried for murder and acquitted by the jury. 

Afterwards he was again taken into military cus- 
tody and was arraigned before a general court-martial 
upon the following charge and specification: 

"Charge 1: Conduct to the prejudice of good 
order and military discipline in violation of the 62d 
Article of War. 

' 'Specification : In that Private Fredie R. Stubbs, 
Co. K, 19th U. S. Infantry, did assault Private Tom 
C. Vandiver, Co. K, 19th U. S. Infantry, by shoot- 
ing him with a rifle, and did wound the said Vandi- 
ver, thereby causing his, the saidVandiver's, death." 

He was found guilty as charged and sentenced 
to be dishonorably discharged from the service of 
the United States, forfeiting all pay and allowances 
due him, and to be imprisoned for five years. 

The sentence was put into effect. 

The case comes before District Judge Hanford 
on application for writ of habeas corpus. 

POINTS OF LAW TO BE DECIDED 

1. Is the trial and acquittal of the petitioner, on 

185 



—186— 

a charge of murder, before a civil court, a bar to his 
subsequent trial before a military court for violation 
of the 62d Article of War. 

2. Does a charge of assault v^ith a rifle and the 
infliction of a mortal wound allege an offense under 
the 62d Article of War. 

3. Did the court-martial have jurisdiction to 
sentence the accused to a term of five years impris- 
onment, though such term extended beyond the per- 
iod of his enlistment. 

* OPINION OF THE COURT 

The record of the proceedings of the superior 
court shows that the petitioner is not guilty of any 
crime of which he might have been convicted under 
the information filed against him. It does not es- 
tablish as a fact that he did not kill a man, nor that 
the homicide was not a consequence of "conduct to 
the prejudice of good order and military discipline." 

Although the acts described in the specification 
are identical with the acts alleged in the information 
for murder, the elements constituting the offense 
charged are radically different. 

After having surrendered him, the military au- 
thorities could not lawfully try the petitioner for mur- 
der,tor manslaughter, or a criminal assault; but it is 
equally true that the superior court had no jurisdic- 
tion to adjudicate any question with respect to the 
petitioner's conduct as a soldier. 

The Constitution of the United States contains a 
guaranty that no person shall "be subject for the 
same offense to be twice put in jeopardy of life or 
limb. " It is to be observed, however, that the words, 
"same offense," are not synonymous with the words, 
"same act;" and, since more than one offense may 
actually be committed by a single act, the Consti- 
tution does not shield the perpetrator from punish- 
ment for other offenses when he has been convicted 
or acquitted of one. 

The 62d Article of War, upon which the second 



—187— 

prosecution is founded, excludes capital crimes, and 
from the record it is manifest that special care was 
taken to charge the petitioner with an offense differ- 
ent from the one of which he was acquitted by the 
Superior Court. Although the same act is specified, 
the gist of the offense charged is unsoldierly conduct 
by a soldier, subversive of military discipline. For 
that offense the petitioner continued to be amenable 
to military law. ^ 

An assault with a lethal weapon and the in- 
fliction of a mortal wound by one soldier upon another 
* * * is amply sufficient to support the charge of 
a crime comprehended by the 62d Article of War. 

The 62d Article of War has been supplemented by 
the Act of September 27, 1890, " which provides that 
punishment at the discretion of a court-martial shall 
not, in time of peace, exceed a limit which the Presi- 
dent may prescribe. Pursuant to this law the Presi- 
dent has fixed as a maximum of imprisonment in 
cases prosecuted under the 62d Article of War, a 
term of ten years. 

It is the opinion of the court that the surrender 
of the petitioner to the civil authorities did not have 
the effect to absolve him from him from his obliga- 
tion under the terms of his enhstment; nor to keep 
the military authorities from proceeding against him 
for the military offense; also that the charge and 
specification of that offense are not defective, and that 
the court-martial did not exceed its jurisdiction by 
sentencing him to imprisonment for a term extending 
beyond the term of military service for which he was 
enlisted. ^ 

CASES CITED 

Cruss vs. North Carolina, 132 U. S. 139. 
Ex parte Mason, 105 U. S. 696. 
Steiner's Case, 6 Op. Atty. Gen. 413. 
Howe's Case, 6 Op. Atty. Gen. 506. 

117 Amer. and Eng. Enc. Law (2d Ed.), pp. 604,605; Cruss 
vs. North Carolina, 132 U. S. 139; Steiner's Case, 6 Op. Atty. 
Gen. 413; Howe's Case, Id. 506. 

8C. 998, 26 Stat. 491; U. S. Comp. St. 1901, p. 969. 

3Ex parte Mason, 105 U. S. 696. 



HAMILTON V. McCLAUQHRY, WARDEN 



Circuit Court, D. Kansas, 1st Division, 1905 
136 Federal Reporter 445 



Prepared by Captain R. H. McMaster, 1st Field 
Artillery. 



' STATEMENT OF THE CASE 

On December 23, 1900, Private Fred Hamilton, 
Troop K, 6th U. S. Cavalry, serving atPekin, China, 
with the detachment of the American Army which 
was engaged in suppressing the "Boxer Uprising", 
shot and killed Corporal Charley Cooper, also of the 
6th Cavalry. 

On February 4, 1901, Hamilton was tried by a 
court-martial convened and sitting at Pekin, China, 
under the following charge and specification: 

"Charge: Murder in violation of the 58th Article 
of War. 

"Specification: In that Private Fred Hamilton, 
Troop K, 6th Cavalry, U. S. Army, did wilfully, fel- 
oniously, and with malice aforethought, inflict a 
wound on Corporal Charley Cooper, 6th Cavalry, de- 
ceased, by firing a ball cartridge from a Colt's revol- 
ver, caliber 38, at said Cooper. From the effect of 
said wound the said Cooper died almost immediately. " 

The accused submitted a plea in bar of trial, 
"want of jurisdiction of court." 

This special plea was overruled by the court and 
the accused then pleaded not guilty. The finding of 
the court was guilty and the sentence was dishonor- 
able discharge and life imprisonment. 

Major General Chaffee, the convening and re- 
viewing authority, approved the proceedings of the 
court but reduced the term of confinement to 20 

188 



—189— 

years in the U. S. Penitentiary at Fort Leavenworth > 
Kansas. 

The case came up before District Judge Pollock 
on application for writ of habeas corpus. 

POINTS TO BE DECIDED 

1. Did the court-martial have jurisdiction of 
the person and offense and was its judgment imposed 
conformably to law? 

2. What department decides whether or not a 
state of war exists? 

3. Did the "Boxer Uprising" in China, in June, 
1900, constitute a state of war within the provisions 
of the 58th Article of War? 

OPINION OF THE COURT 

The 58th Article of War under which the peti- 
tioner was tried and convicted reads as follows: 

" In time of war, insurrection, or rebellion, lar- 
ceny * * * murder * * * shall be punish- 
able by the sentence of a general court-martial, 
when committed by persons in the military service 
of the United States," etc. 

Counsel for the petitioner insists that at the 
time of the homicide there prevailed neither war, in- 
surrection, nor rebellion, and therefore the military 
court was without jurisdiction. 

In considering this question a few of the funda- 
mental principles of law may be stated. 

It is the settled law that courts-martial are 
courts of inferior and limited jurisdiction. No pre- 
sumptions in favor of their exercise of jurisdiction 
are indulged. To give effect to their judgments 
imposed, it must clearly appear that the court was 
legally constituted, that it had jurisdiction of the 
person and the offense charged, and that its judg- 
ment imposed is conformable to law. ' 

^Dynes v. Hoover, 20 How. 625; Runkle v. U. S., 122 U. 
S. 543. 



—190— 

And again * * * where a respondent in 
habeas corpus admits the restraint charged against 
him, he must justify by basing his right of restraint 
upon the exercise of some provision of positive law, 
binding upon him, or the writ must issue and the 
person restrained must have his hberty. 

The counsel for the respondent contends that at 
the time of the commission of the homicide a con- 
dition of war existed in China, and that this govern- 
ment, as a participant, was authorized to exercise 
military power by a court-martial to punish one then 
in that country in the military service of the United 
States, for the commission of the crimes enumerated 
in the 58th Article of War. During the military 
occupation of China by our troops, there were 271 
trials by general court-martial. The offenders so 
tried were not amenable to the laws of China, and 
offenses by them committed were not committed in 
violation of any law of China, because done by per- 
sons in the military service of the country while 
stationed in China. ^ 

It therefore follows that if any punishment 
must be meted out for a crime committed by a person 
in the military service of the United States during 
the occupation of China, such punishment must be 
imposed under the 58th Article of War, or the 
offender go unpunished. 

Again, the existence of a condition of war must 
be determined by the political department of the 
government, and the courts must take judicial notice 
of such determination. ^ 

In the present case there is no formal declaration 
of war against either the government of China or the 
"Boxer " element. A formal declaration of war is, 

1 Coleman vs. Tennessee, 97 U. S. 509; Dow vs. Johnson, 
100 U. S. 158. 

^U. S. vs. 129 Packages, Fed. Case No. 15,941; Prize 
Cases, 2 Black 666. 



— i9i— 

however, unnecessary. The question here is whether 
the government was at the time of the commission of 
the homicide, prosecuting its rights in Chinese territory 
by force of arms. 

I am constrained to hold that by reason of the 
occupation of Chinese territory by the large military 
force of this government (5,000 men), under au- 
thority of the War Department, the many conflicts 
between the forces of this government and the 
Chinese troops, and the recognition of a condition of 
war by the Congress of the United States in making 
payment to the officers and men of this government, 
there engaged, on a war basis, that there prevailed 
in China a condition of war at the time of the homi- 
cide. 

"That the essential and requisite jurisdictional 
facts authorizing a trial of the petitioner by a general 
court-martial did exist; and that the judgment of 
that court must be upheld and enforced. 

"The writ is denied." 

CASES CITED 

Dynes vs. Hoover, 20 How. 625. 

Runkle vs. U. S., 122 U. S. 543. 

Coleman vs. Tennessee, 97 U. S. 509. 

Dow vs. Johnson, 100 U. S. 158. 

Prize Cases, 2 Black 666. 

U. S. vs. 129 Packages, Fed. Case No. 15,941. 



Ex Parte SCHLAFFER 



District Court, S. D. Florida, 1907 
154 Federal Reporter 921 



Prepared by Captain Berkeley Enochs, 19th Infantry 



STATEMENT OF FACTS 

Schlaffer, an enlisted man of the Army, was 
stationed at the post of Key West, •Florida, 

While in the city of Key West, he was arrested 
for a violation of a city ordinance, was tried and fined 
$25, 00, and, in default of payment, was sentenced to 
sixty days' imprisonment. 

The commanding officer of the post petitioned for 
a writ of habeas corpus in the District Court, Southern 
District of Florida, contending that an enlisted man 
was not subject to municipal ordinances, and could 
not be arrested, held, and punished for a violation of 
such, relying upon a cited decision of the Supreme 
Court of Utah. 

Upon the return of the writ, the respondent, the 
sheriff, objected that the petition was not signed by 
the party held in custody. 

The court overruled this objection, holding that 
a commanding officer of troops has such an interest 
in the presence, custody, and control of an enlisted 
man as would justify his signing a petition for a writ 
of habeas corpus, although the soldier had not signed 
the same. 

The sheriff thereupon answered that he held 
Schlaffer by a regular commitment from the city 
court, showing that he had been regularly tried and 
convicted for a violation of a city ordinance. 

192 



—193— 

During the hearing upon affidavits under oath, 
there was testimony tending to show that before the 
evening of the arrest there had been a raid upon the 
soldiers, prearranged and premeditated by the poHce 
force. Further, that the offense for which Schlaffer 
was arrested was not a breach of the peace nor an 
injury to person or property. 

The Judge gave his opinion and decision. 

He stated that during times of peace the military 
power is subordinate to the civil and, while an enlisted 
man is amenable to the statutory law and may be de- 
tained on necessary occasions for violations of mu- 
nicipal ordinances, yet when the punishment inter- 
feres with the duty he owes to the United States as a 
soldier, the utmost good faith on the part of the 
municipal authorities is demanded. And a United 
States court, in its duty of protecting the interests of 
the United States in any matter where the necessary 
governmental agencies are concerned, can justly in- 
quire into any cruel or unfair treatment of him as a 
soldier or adverse discrimination on account of his 
position. 

Further, the 59th Article of War provides that 
soldiers shall be delivered up to be tried by the civil 
authorities only when their acts have resulted in 
injury to the person or property of a citizen. 

The charge upon which Schlaffer was arrested 
was in no way claimed to be of an injurious nature to 
person or property. 

The demands of pubHc peace often require that 
municipal ordinances shall be enforced by the arrest 
of enlisted men, but the question as to what punish- 
ment may be inflicted, thus depriving the United 
States of the soldier's services, is a difficult one. 

(The Judge did not decide this question definitely, 
but was influenced no doubt in his decision in favor 
pf granting the prayer of the petition by the fact 



—194— 

that the offense was not one contemplated by the 
59th Article of War— that is, injurious to person or 
property.) 

The judge in conclusion stated that while neither 
the contention made in this case in behalf of the 
petitioner that the municipal authorities have no 
legal right to arrest an enlisted man for violations of 
its ordinances nor the contention in behalf of the 
city that the police powers of the city are supreme 
apd that the position of an enlisted man may be 
ignored and the right to his services by the United 
States disregarded, can be accepted to the full extent 
either is claimed, and while he did not have the au- 
thority nor desired to act as a court of review of the 
municipal authorities, it is not considered that it is 
necessary to inquire fully into the exact legal rights 
of either party to find a happy medium between 
their conflicting contentions. 

The decision was, that the peculiar conditions of 
the case satisfied the judge that law and justice re- 
quired that the prayer and petition be granted and 
the soldier was restored to the custody of his com- 
manding officer. 

The judge then justly observed that it would not 
be saying too much to say there is no more incon- 
trovertible presumption of a policeman always doing 
his duty and nothing more than there is of a soldier 
always strictly obeying the laws. 

He recommended that both the civil and mili- 
tary authorities act with fairness, good faith and an 
earnest desire for the general good when the two 
have relations with each other, and that the civil au- 
thorities recognize the fact that soldiers are liable to 
be tried for misconduct while on leave and that they 
should not be treated by them as though they (the 
soldiers) were amenable to no other power. 

And finally, that the position of soldiers and the 



-l98- 

requirements of their constant duty demand, in be- 
half of the National Government from the municipal 
authorities, such a recognition of its rights as would 
accomplish a preservation of the peace and the obser- 
vance of the city ordinances as would in no way 
affect their duties as soldiers. 

THE FOLLOVV^ING POINTS OF LAW WERE DECIDED 

1. A commanding officer may sign a petition for 
a writ of habeas corpus when an enlisted man of his 
command is the person whose confinement is to be 
inquired into. 

2. When an enlisted man is confined by the civil 
authorities and discrimination on account of his posi- 
tion as a soldier can be proven against the civil au- 
thorities, a writ of habeas corpus will be issued on 
application to a federal court. 

3. Enlisted men may be tried by court-martial 
for violations of the Articles of War when committed 
off a military reservation. 

4. Enlisted men are amenable to the statutory 
law. 



REID vs. UNITED STATES 



District Court, Southern District of New Yorlt, 1908 
161 Federal Reporter 469 



Prepared by Captain Berkeley Enochs, 19th Infantry 



STATEMENT OF THE CASE 

The soldier, Reid, the petitioner, enlisted in the 
usual manner on July 18, 1904, to serve three years. 

Having been assigned to the 25th Infantry, he 
was on August 13, 1906, serving at Fort Brown, 
Texas, near the city of Brownsville. 

On the night of August 13-14, 1906, a disturb- 
ance occurred in Brownsville, and, after several in- 
vestigations—one upon the President's own order— 
had been made, and an effort to discover the perpe- 
trators had failed, the discharge without honor of 
practically all the enlisted men at Fort Brown was 
personally ordered by the President. 

Reid was so dischargjj^d November 9, 1906, and 
now brings a petition to recover the pay and emolu- 
ments which would have accrued to him between the 
date of his discharge and the expiration of his term 
of enlistment, had he continued in the service. 

The petition is brought under the Tucker Act, 
which provides redress, under proper circumstances, 
against the United States in cases of persons who are 
hired for a specific time and who have been dis- 
charged before the time of hire has expired. 

This of course implied the contention that an en- 
listment is analogous to a civil contract of hire and 
that the President is not proper authority for an early 
discharge. 

196 



-197- 

The government set up as a defense that the 
discharge was not made as a punishment of the 
petitioner, but for the good of the service, and for 
the maintenance of the morale of the Army. 

POINTS OF LAW TO BE DECIDED 

1. Is a contract of enlistment a military contract 
of hire, analogous to a civil contract of hire? 

2. Under the assumption that 1 is to answered 
affirmatively, is the President a proper authority to 
order an early discharge? 

3. Will the courts inquire into the question of 
the justice of a discharge "without honor " ? 

The Judge, in giving his opinion, deduced as 
follows: 

1. All questions as to the guilt of Reid and 
whether the action of the President was unnecessarily 
severe, cruel or unjust are beyond this judicial in- 
vestigation. 

2. The nature of a soldier's contract of enlist- 
ment has been sufficiently treated in In re Grimley, 
137 U. S. 147. ' 

3. When Reid enlisted, he did so, not for a de- 
finite time, but for three years, ' 'unless sooner dis- 
charged by proper authority." No reasons which 
would be sufficient for early discharge are set out in 
the enlistment papers. Therefore, if the "authority" 
be "proper," Reid was legally discharged and has no 
claim against the Government, since it was not bound 
as to what reasons would justify the early discharge. ^ 

iThe nature of a soldier's contract of enlistment as given 
in the case cited (In re Grimley, 137 U. S. 147) is as follows: 

" Enlistment is a contract; but it is one of those contracts 
which changes the status; and where that is changed no 
breach of the contract destroys the new status or relieves 
from the obligations which its existence imposes." 

-Quoting: U. S. v. Cottingham, 1 Rob. (Va.) at page 
269, 40 Am. Dec. 710; U. S. v. Blakeny, 3 Grat. (Va.) 405, cited 
In re Morrisey 137 U. S., at page 159, 11 Sup. Ct. 57, 34 L. Ed. 
644. 

Also an English Case— In re Tuffnell, L. R. 3 Ch. Div. 173. 



—198— 

4. An examination of the Fourth Article of War 
indicates that the President is "proper authority" 
when the Article is interpreted in the light of mili- 
tary practices, customs and procedure well known 
and judicially recognized long before the date of the 
Revised Statutes. 

By these customs so recognized and approved by 
Congress, the soldier's engagement was but at the 
will of the government which he served, and that 
g6vernment by authority of Congress speaks through 
(for the purposes of this case) the President of the 
United States. 

5. The phrase "without honor" is not known to 
the statutes. It is found in the regulations which do 
not bind the Secretary of War who makes them, 
much less the Commander-in-Chief.^ 

The giving of a discharge without honor is there- 
fore in the discretion of the President in this case and 
the judicial branch will not review the acts of an 
executive officer which are discretionary with him. 

Note: It is only by a sentence that a dishonor- 
able discharge can be authorized. Being a punish- 
ment it cannot be prescribed by an order, 
(Digest of Opinions, J. A. G., par, 25.) 
Final judgment in favor of the government and 
against the petitioner. 

CASES CITED 
In re Grimley, 137 U. S. 147. 
In re Morrisey, 137 U. S. 159. 
U. S, V. Ringsley, 138 U. S. 87. 
Martin v. New York Life Ins, Co., 148 N. Y. 

118. 
United States v, Cottingham, 1, Rob. (Va.) 

629. 
United States v. Blakeny, 3 Grat. (Va.) 405. 
Smith V. U. S., 24 Ct. CI. 209. 
In re Tuffnell, L. R. 3 Ch. Div. 173 (English 
Case. ) 

1 Smith V. U. S., 24 Ot. 01. 209. 



PUNDT vs. PENDLETON, JAILER 



U. S. District Court, N. D. Georgia, N. W, D., 1909 
167 Federal Reporter 997 



Prepared by Captain J. W. Barker, 3d Infantry 

STATEMENT OF THE CASE 

This is a case of a petition in the U. S. District 
Court, N. D. Georgia, for a writ of habeas corpus in 
behalf of W. A. Pundt and other Quartermaster 
teamsters at Fort Oglethorpe, Georgia, who were 
confined in the county jail of Catoosa County, Georgia, 
by the road commissioners of the adjoining road 
district for not obeying the summons of the road 
overseer to work on the public roads outside of the 
U. S. reservation. 

Pundt had been for three years a teamster in the 
permanent employment of the Quartermaster's De- 
partment of the U. S. Army at Fort Oglethorpe, re- 
siding continuously at that post and being domiciled 
in a government building thereon. 

Pundt claimed a residence in Texas and he was 
not an inhabitant of Georgia in the sense in which 
that term is used in the statutes of Georgia in refer- 
ence to road duty. He was in the state of Georgia 
and in Catoosa County simply as an employee of the 
Quartermaster's Department of the Army. 

On or about the 2d day of December, 1907, Pundt 
and other teamsters similarly employed at Fort 
Oglethorpe were warned by the road overseer to meet 
him at Cloud Springs Church on December 4, 1907, to 
work the public road, said road being situated outside 
of the said military post and outside of the Chicka- 

199 



-200- 

mauga and Chattanooga National Park, within the 
road district wherein said commissioners resided. 

On account of their duties with the government 
they did not obey said summons and did not work the 
pubHc roads. On account of said default, the said 
road commissioners caused notice to be served on 
Pundt and the others to appear before them Decem- 
ber 28, 1907, to answer said default. Pundt and the 
others with one exception appeared and testified on 
their own behalf. They were fined $12.00 each and 
costs, or, in default of payment, to be committed to 
the county jail of Catoosa County for thirty days. 
They defaulted and went to jail. 

They then applied for and obtained the sanction 
of the writ of certiorari. This suspended on bond 
the execution of the imprisonment until the hearing 
on the writ which came on before Judge Fite at Dal- 
ton, Georgia, on October 12, 1908. He ordered and 
adjudged that the writs be dismissed upon the ground 
that no notice had been served upon the opposite 
party in interest as required by law, and that the 
judgment of the court below be affirmed and that 
each of the said petitioners in certiorari pay the cost 
of said proceeding, and further ordered that the exe- 
cution of the remainder of the sentence imposed by 
the road commissioners be suspended until October 
22d when all were to appear and perform said sen- 
tence. 

They presented themselves at Ringgold, Georgia, 
on October 22d and were imprisoned in the Catoosa 
county jail in the custody of James B. Pendleton, the 
county jailer. 

They were still in his custody at the time their 
petition for writ of habeas corpus was served. 

POINTS OF LAW TO BE DECIDED 

1. Whether state or other local authorities have 



-201- 

power to interfere with any instrumentalities neces- 
sary to the proper use, as a military post, of a loca- 
tion acquired by consent of the state legislature for 
for a national military park, 

2. Whether a teamster in the permanent employ 
of the Quartermaster's Department at Fort Ogle- 
thorpe, Georgia, can be required by local authorities 
to work on roads outside of the U. S. reservation, and 
whether his imprisonment for failure to work on said 
roads is a violation of his constitutional and legal 
rights. 

3. Whether it is a bar to habeas corpus proceed- 
ings in a U. S. District Court that a state court has 
previously dismissed a writ of certiorari to review the 
sentence of imprisonment imposed upon the petition- 
ers. 

4. Whether a federal court will discharge on a 
writ of habeas corpus a Quartermaster's teamster im- 
prisoned by state authorities where such imprison- 
ment is in violation of the Constitution and U. S. laws 
and prevents the performance of the duties of his em- 
ployment. 

DECISION OF THE COURT 
Newman, District Judge. 

1. The land on which Fort Oglethorpe and the 
buildings appurtenant to it are situated is a part of a 
tract of land of which jurisdiction was ceded to the 
United States by an act of the Legislature of Georgia. 
(Laws Ga. 1890-91, Vol. 1, p. 200.) 

This act followed the Act of Congress, August 19, 
1890, c. 806, 26 Stat. 333, an act by the language of 
the preamble to establish a National Military Park at 
the battlefield of Chickamauga. 

The Constitution of the United States, Art 1, sec. 

8, provides: 

' 'The Congress shall have power * * * to 
exercise exclusive jurisdiction in all cases whatsoever 
* * * over all places purchased by consent of the 
legislature of the state in which the same shall be for 



—202- 

the erection of forts, magazines, arsenals, dock yards, 
and other needful buildings."' 

As heretofore stated, the land on which Fort 
Oglethorpe is located is within the limits of the tracts 
of land acquired by the United States by the consent 
of the Legislature of the state. The purpose for 
which these lands were acquired, as named in the 
cession, was for a "National Park." The purpose 
named in the Act of Congress was a "National 
Military Park." The Act of Congress was in the 
mind of the Legislature of the state, as shown by the 
reference to it in the caption of the act. So it seems 
that little question could exist that to use this land 
for a military post is in line with the purpose of the 
cession, even testing it by the language used in the 
act of the Legislature, and more so when considered 
in connection with the Act of Congress. It is cer- 
tainly not in any way antagonistic to the purpose 
contemplated. It is perfectly clear that, the govern- 
ment having decided it was necessary and proper to 
establish a military post there, and having established 
such post by order of the War Department, neither 
the state, nor any county of the state, v/ould have 
the right to interfere with instrumentalities nec- 
essary to the proper use of this location as a mili- 
tary post, and to render that use effective and com- 
plete. This would be true even if the lands had been 
acquired within the state, without any consent 
whatever on the part of the Legislature of the state. 
Taking into consideration, however, the act of the 
Legislature, passed in view of and to effectuate the 
Act of Congress, I do not think there is any material 
difference, for present purposes at least, between the 
situation here and what it would be if the act of the 
Legislature had been in the language of the constitu- 
tional provisions as to the establishment of forts, 
arsenals, etc. 

The use, therefore, of a part of the ceded land 
for a military post, while not coming strictly within 
the act of the cession, is at least not antagonistic 
thereto. After the establishment of the park, a 
certain number of troops there v/ould be proper, and 
might be necessary, to protect the property and carry 

1 Railroad Company vs. Lowe, 114 U. S. 525. 



—203— 

out the purpose of the cession. It is certainly true 
that the county of Catoosa would have no right to 
interfere in any way with the troops located at Fort 
Oglethorpe, or with anything necessary and proper 
to be used in connection with the fort as a military 
post and the troops located there. 

2. It is not claimed, and will not be claimed, of 
course, that the officers and enlisted men of the army 
stationed at the fort are subject to road duty in 
Catoosa County. Are teamsters, employed and 
regularly used by the Quartermaster's Department at 
the fort subject to such road duty? 

Sectictfi 1133, Revised Statutes, provides: 

"It shall be the duty of the officers of the 
Quartermaster's Department under the direction of 
the Secretary of War to purchase and distribute to the 
army all the military stores and supplies, requisite 
for its use. which other corps are not directed by law 
to provide; to furnish means of transportation for the 
army, its military stores and supplies. * * * " 

By Act of Congress, March 1, 1875, the President 
is authorized to make and publish regulations for the 
government of the Army in accordance with existing 
laws. 

Among such regulations are the following: 

Army Regulation 1: 

"All persons in the mihtary service are required 
to obey strictly and to execute promptly the lawful 
orders of their superiors," 

Army Regulation 730 is as follows: 

"In the staff corps and departments the em- 
ployment of civilians will be regulated by the re- 
spective chiefs of bureaus under the direction of the 
Secretary of War. Those whose services are engaged 
with the intention or probability of retaining them for 
more than three months are classified as permanent 
employes * * * ." 

The petitioner, W. A. Pundt, is a teamster in the 
permanent employment of the Quartermaster's De- 
partment of the army. It is unnecessary to discuss 
the necessity of teamsters to the military service. A 



—204- 

military post could not be properly maintained if in- 
deed it could be maintained at all, without teamsters. 
The character of an army teamster's service and his 
duties are such that it would be impossible for him to 
perform them properly and be at the call of the road 
commissioners to work the public roads of Catoosa 
county outside of the government property. 

Pundt is not an "inhabitant" of the state in the 
sense in which that term is used in the statutes of 
Georgia in reference to road duty. He comes from 
a'nother state, and is in this state and in Catoosa 
county simply as an employee of the Quartermaster's 
Department of the army. 

In the language of the Circuit Court of Appeals 
for the Sixth Circuit (In re Thomas, 87 Fed. 453): 

' 'Inasmuch as the legislature * * * had no 
power to regulate the conduct of this administrative 
agency of the national government by such a statute 
as is here in question, it ought to be presumed that 
the legislature did not intend it to have such an ap- 
plication, and that the statute should be construed ac- 
cordingly." 

This view of the matter, however, is not control- 
ling with me, because I believe Pundt is exempt from 
this road duty not only for the reason just mentioned 
but because of the fact that he is a necessary instru- 
mentality in that portion of the United States Army 
stationed at Fort Oglethorpe, and that he is such an 
important and necessary part of the military estab- 
lishment as that the state and county of Catoosa has 
no right to call upon him to be absent from the fort 
when such absence would interfere with the proper 
discharge of his duties as a necessary and important, 
even if an humble, part of the Army of the United 
States. 

The necessary conclusion, therefore, is that, on 
account of the petitioner's position and duties in con- 
nection with the Quartermaster's Department of the 
army at Fort Oglethorpe, he is not subject to road 
duty in Catoosa county as claimed by the road com- 
missioners, and that his detention in jail for failure 
to perform such road duty is in violation of his rights 
under the Constitution and laws of the United States, 
such laws including the Articles of War and the Army 



—205— 

Regulations, the latter made in pursuance of the 
statutes of the United States and therefore, for pres- 
ent purposes, considered as a part of the statutes. 

3. A writ of certiorari was applied for from the 
decision of the road commissioners, and the same 
was dismissed in the superior court on the ground as 
expressed in the order of dismissal, "that no notice 
has been served on the opposite party in interest as 
required by law." * * * rpj^g notice in this case 
appears to have been served upon the road commis- 
sioners, and, while this fact is not expressed in the 
order of the superior court, it is evident that this no- 
tice was deemed insufficient, and that the road com- 
missioners were not considered "the opposite party 
in interest. " Upon whom this notice should have been 
served is not apparent from the statutes of the state 
so far as my examination goes. 

In Hughes v. United States, 4 Wall. 232-237, in 
the opinion by Mr. Justice Field, it is said: 

"It requires no argument to show that judg- 
ments like these are no bar to the present suit. In 
order that a judgment may constitute a bar to anoth- 
er suit, it must be rendered in the proceedings be- 
tween the same parties or their privies, and the point 
of controversy must be the same in both cases, and 
must be determined on its merits. If the first suit was 
dismissed for defect of pleadings, or parties, or a mis- 
conception of the form of proceedings, or the want of 
jurisdiction, or was disposed of on any ground vv^hich 
did not go to the merits of the action, the judgment 
rendered will prove no bar to another suit. ' ' ' 

This case must stand, therefore, I think, on the 
action of the road commissioners in recommitting 
Pundt to jail for his failure to comply with the order 
of the road commissioners requiring him to work the 
public roads. He was in jail under this order of the 
road commissioners when the writ of habeas corpus 
was applied for. 

4. The foregoing being the situation, should 
Pundt be discharged from custody by an order made 
in this proceeding? 

"Smith V. McNeal, 109 U. S. 426; St. Romes v. Levee, 
etc., Company, 127 U. S. 614. 



—206— 

Sections of the Revised Statutes of the United 
States material here are as follows: 

"Sec. 751. The Supreme Court and the Circuit 
and District Courts shall have power to issue writs 
of habeas corpus. 

"Sec. 752. The several justices and judges of 
the said courts within their respective jurisdictions, 
shall have power to grant writs of habeas corpus 
for the purpose of an inquiry into the cause of re- 
straint and liberty. 

"Sec. 753. The writ of habeas corpus shall in 
no case extend to a prisoner in jail, unless where he 
is in custody under or by color of the authority of the 
United States, or is committed for trial before some 
court thereof, or is in custody for an act done or 
omitted in pursuance of a law of the United States, 
or an order, process, or decree of a court or judge 
thereof, or is in custody in violation of the Constitu- 
tion or of a law or treaty of the United States. * * * " 

The Supreme Court has in many cases considered 
and passed upon the question as to when and in what 
class of cases the courts shall exercise their discretion 
in favor of discharging a prisoner while in custody 
under state authority, when on the hearing of a writ 
of habeas corpus it is claimed that such detention of 
the prisoner is in violation of the Constition or a law 
of the United States; and when, on the contrary, it 
should refuse to discharge and allow the case to go 
through the courts of the state, and from the highest 
court of the state to the Supreme Court of the Unit- 
ed States. The Supreme Court has always held that, 
unless a case be exceptional, it should be allowed to 
take the latter course, and the courts of the United 
States decline to interfere by habeas corpus proceed- 
ings. 

The most important cases on the subject, com- 
mencing with Ex parte Royall, 117 U. S. 241, are 
cited in the most recent cases, In re Lincoln, 202 U. 
S. 178, and Urquhart v. Brown, 205 U. S. 179. In Ex 
parte Royall, supra, in the opinion of Mr. Justice 
Harlan, he stated the rule as to how the discretion of 
the court should be exercised in this class of cases. 
An extract from that opinion is as follows: 

' 'This court holds that where a person is in cus- 



—207— 

tody, under process from a state court of original jur- 
isdiction, for an alleged offense against the laws of 
such state, and it is claimed that he is restrained of 
his liberty in violation of the Constitution of the 
United States, the Circuit Court has a discretion, 
whether it will discharge him, upon habeas corpus, 
in advance of his trial in the court in which he is in- 
dicted; that discretion, however, to be subordinated 
to any special circumstances requiring immediate ac- 
tion. When the state court shall have finally acted 
upon the case, the Circuit Court has still a question 
whether, under all the circumstances then existing, 
the accused, if convicted, shall be put to his writ of 
error from the highest court of the state, or whether 
it will proceed, by writ of habeas corpus, summarily 
to determine whether the petitioner is restrained of 
his liberty in violation of the Constitution of the 
United States. " 

In Urquhart v. Brown, supra, Mr. Justice Harlan 
again speaking for the court on this question, said: 

' 'The exceptional case in which a federal court 
or judge may sometimes appropriately interfere by 
habeas corpus in advance of final action by the 
authorities of the state are those of great urgency 
that require to be promptly disposed of, such, for in- 
stance, as cases involving the authority and opera- 
tions of the general government, or the obligations of 
this country to, or its relations with, foreign na- 
tions." 

The more important cases in which it has been 
held that a prisoner in state custody should be dis- 
charged when his arrest and detention is in violation 
of the Constitution or a law of the United States are 
Ohio V. Thomas, 173 U. S. 276, and Boske v. Comin- 
gare, 177 U. S. 459. 

In Minnesota v. Brundage, 180 U. S. 499, in the 
opinion by Mr. Justice Harlan these two cases are re- 
ferred to in this way: 

"So in Ohio v. Thomas, 173 U. S. 276, which was 
the case of the arrest of the acting governor of the 
central branch of the National Home for Disabled 
Volunteer Soldiers at Dayton, Ohio, upon a charge of 
violating a law of that state, the action of the Circuit 
Court of the United States discharging him upon 



—208— 

habeas corpus while in custody of the state authori- 
ties was upheld upon the ground that the state court 
had no jurisdiction in the premises, and because the 
accused, being a federal officer, may, upon conviction, 
be imprisoned as a means of enforcing the sentence 
of a fine, and thus the operations of the federal gov- 
ernment might in the meantime be obstructed." 

The exception to the general rule was further illus- 
trated in Boske v. Comingore, 177 U. S. 459, in which 
the applicant for the writ of habeas corpus was dis- 
charged by the Circuit Court of the United States 
while held by state officers, this court saying: "The 
present case was one of urgency, in that the appellee 
was an officer in the revenue service of the United 
States whose presence at his post of duty was im- 
portant to the public interests, and whose detention 
in prison by the state authorities might have inter- 
fered with the regular and orderly course of the bus- 
iness of the department to which he belonged." 

The case at bar, in my judgement, comes within 
the rules laid down in these cases. If the prisoner is 
confined in jail in Catoosa county, it will necessarily 
interfere materially with the Quartermaster's De- 
partment at Fort Oglethorpe. The importance of 
this department to the troops is obvious. 

In view of the circumstances, I do not think the 
case should await the slow process and the delay of 
carrying it through the state courts. It is not at all 
clear that Pundt has any rights now in the state 
court. It seems that, if his right to be discharged 
from custody is ever to be determined, it must be de- 
termined and the petitioner have the benefit of it 
now. 

An order will be entered discharging the peti- 
tioner, W. A. Pundt, from the custody of James B. 
Pendleton, jailer of Catoosa County. 

What is said in this case is applicable in the 
other cases, and like orders will be made in all, as 
they were heard together by consent of counsel. 

LIST OF CASES CITED 



U. S. SUPREME COURT 

Fort Leavenworth R. R. Co. vs. Lowe, 114 



—209— 

U. S. 525. 
Hughes vs. U. S., 4 Wall. 232. 
Smith vs. McNeal, 109 U. S. 426. 
St. Romes vs. Levee, etc., Company, 127 U. S. 

614. 
Ex parte Royall, 117 U. S. 241. 
In re Lincoln, 202 U. S. 178. 
Urquhart vs. Brown, 205 U. S. 179. 
Ohio vs. Thomas, 173 U. S. 276. 
Boske vs. Comingore, 177 U. S. 459. 
U. S. vs. Gettysburg Electric Railroad Co., 

160 U. S. 668. 
Whitten vs. Tomlinson, 160 U. S. 231. 
Baker vs. Grice, 169 U. S. 284. 
Minnesota vs. Brundage, 180 U. S. 599. 

FEDERAL REPORTER 

In re Thomas, 87 Fed. 453. 



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